Adjustment of Status Versus Consular Processing for EB-5 Investors -

Adjustment of Status Versus Consular Processing for EB-5 Investors

Seth Joseph

Once an investor’s I-526 petition is approved, it is time to move on to the next step of the process – the attainment of conditional permanent residence.  This can be achieved either via the filing of a Form I-485, Application to Adjust Status with the U.S. Citizenship and Immigration Service (“USCIS”) or an application for an immigrant (permanent) visa at a U.S. consulate overseas. This post will provide EB-5 investors with a brief overview of the legal requirements for adjustment of status (applying for permanent residence while in the U.S.) and “consular processing” (applying for an immigrant visa at a U.S. Consular post abroad).

Specifically, when an EB-5 investor is outside of the U.S. at the time of the approval of the I-526 petition, he or she typically would apply for an immigrant visa at a consular post abroad.  However, when an EB-5 investor is in the U.S. in lawful status at the time of the approval of his or her I-526 petition and at the time the availability of immigrant numbers allows the application, he or she can apply for permanent residence while within the boundaries of the U.S.  This process is referred to as “adjustment of status.”

As mentioned, presence in the U.S. in lawful status is required in order to file for adjustment of status.  However, filing for adjustment of status when an EB-5 investor is present in the U.S. in lawful visitor status (B-1/B-2) can be problematic.  It is important to note, EB-5 investors in the U.S. as visa waiver visitors are prohibited by U.S. immigration laws from applying for adjustment of status based on an approved I-526 petition.  This is because U.S. immigration law does not allow those who come into the U.S. as visitors with B-1 or B-2 visas to possess intent to file applications for permanent residence.  Instead, visitors are only allowed to intend to stay for the period of time they are given at entry and then must depart the U.S.  If an application for adjustment of status is filed by an EB-5 investor who entered the U.S. after the approval of his or her I-526 petition as a visitor, there is a serious risk that USCIS may find that this individual intended to file this application at the time of entry as a visitor.  USCIS may therefore find such an individual “inadmissible” into the U.S. (or in other words, find that he or she cannot become a permanent resident) for that reason. 

In contrast, processing at a consulate abroad for an immigrant visa does not carry the same risk of denial for improper intent, as described above with respect to adjustment of status.  There are of course advantages to filing for adjustment of status.  For instance, the list of required documentation is not as extensive as its counterpart for consular processing and oftentimes, with employment-based cases such as EB-5, no interview is scheduled in connection with adjustment of status.  Therefore, when the investor with an approved I-526 petition is present in the U.S. in lawful status, other than B-1 or B-2, and visa numbers are available, he or she should consider applying for adjustment of status.  Otherwise, it is recommended that consular processing strategy is pursued. 

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