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Why can I not apply for the I-485 after I-526 approval?

I am a Chinese currently living in United States with an F-1 visa. My I-526 was approved on 10/24/2016 and I was about to apply for the I-485 and I-765, but I was told that currently, even if I reside within the United States, I have to wait two years to apply for the I-485. Can you explain why this is? My OPT is expiring next February, so I was expecting to receive an EAD card with my EB-5 application. Seems like this is not going to happen anytime soon.

Answers

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Current laws, policies, and regulations do not allow for an I-485 filing until the I-526 is approved. Proposed changes may allow this, which would be wonderful. In the meantime, you have to plan for alternate U.S. status or prepare to leave the United States.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    There must be an available immigrant visa number (i.e., your priority date must be current) in order to file for adjustment of status (Form I-485).

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Currently, there is a significant immigrant visa backlog for persons born in mainland China due to the number of I-526 petitions filed by Chinese nationals. Because the immigrant visa numbers have been used up for this particular country of chargeability, you have to wait to be able to adjust your status in the United States to a conditional permanent resident. Currently, only those persons who filed their I-526 petitions on or before March 8, 2014 are eligible to file adjustment of status applications. Look at your I-526 petition approval notice. It should contain a received date which is your priority date. If your priority date is on or before March 8, 2014, then you should be eligible to file for adjustment of status with related applications for work authorization and travel documents. Otherwise, you have to wait until an immigrant visa number is available and check the monthly visa bulletin published by the U.S. Department of State to track when your priority date becomes current and you become eligible to file for adjustment of status. Please note you have to maintain an underlying nonimmigrant status to be eligible to adjust status in the United States, such as H-1B, for example. Otherwise, you will have to consular process for your immigrant visa abroad. Contact your immigration attorney to discuss all of this important information.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, I-526 petitions are handled based on country of origin of the petitioners. As a result, your petition will be handled just like all other Chinese petitioners regardless of whether you currently reside in the United States or not. Currently, the waiting period for Chinese EB-5 petitioners is as much as three years, which will account for why you may have to wait for another two years. With your OPT expiring in February 2017, it is not likely you will be able to either file the I-485 in time to stay in the United States or even obtain an EAD to work as a result of the filing. Advisably, consult an EB-5 attorney for your further options.

  • Avatar

    Ying Lu

    Immigration Attorney
    Answered on

    Currently, there is a visa retrogression for China mainland-born applicants to file visa applications. Congress sets limits on the number of immigrant visas that can be issued each year. In order to adjust status to that of legal permanent resident, an immigrant visa must be available to the applicant both at the time of filing and at the time of adjudication. As per the November visa bulletin, only investors that have a priority date (i.e. the receipt date on your I-526 receipt notice) earlier than 06/15/2014 can file their visa applications. If your priority date is later than this date, you will have to wait until your priority date becomes current to file the I-485 application. If you wish to adjust your status in the United States instead of going through the consular processing in Guangzhou, you should try to maintain a valid nonimmigrant status.

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    John J Downey

    Immigration Attorney
    Answered on

    Unfortunately, even though you are physically. present in the United States, you are still under the visa availability of a Chinese national. The visa quota for EB-5 is backlogged. Therefore you must wait.

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    Charles Foster

    Immigration Attorney
    Answered on

    As a Chinese national, you cannot apply for adjustment of status on Form I-485 after your I-526 petition is approved until a visa number is available under the quota. Your best bet is for Congress in early 2017 to increase the overall quota.

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    You got incorrect advice. Provided you are in the United States and have maintained nonimmigrant status, you and your dependents can file to adjust status. (Be sure to let NVC know you are doing this).

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    BoBi Ahn

    Immigration Attorney
    Answered on

    For Chinese nationals applying for EB-5 immigrant visa processing, there is a waiting period after the I-526 is approved due to the maxing out of the immigrant visa numbers available to Chinese nationals in that category. So the approximate two year waiting period is for your priority date (date of filing the I-526) to become current in order for you to file the I-485.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Due to the high number of EB-5 investors applying, the visa numbers available to China have been used up. Currently, the only people who could file for AOS, I-485, are people who have filed the I-526 on or before March 8, 2014. On your I-526 approval notice on the top left hand side, you will see the Priority Date. If your Priority Date is on or before March 8, 2014, then you will be able to file the I-485. Otherwise, you will have to wait until the visa numbers for China become current/open for you. Your immigration lawyer should be able to explain this to you and keep monitoring the status to help you file the I-485 application immediately after the visa number becomes current/open.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    In order to file an adjustment application, you need to have a visa number available. Check the Department of State Visa Bulletin. Presently cases filed before March 8, 2014 can file an adjustment. You will likely need an H-1B or other visa because of this waiting line.

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