By Rosanna M. Fox and Lauren A. Tetenbaum
Great news that my I-526 petition was approved! I’m currently in the United States in valid visa status. I can now apply for Adjustment of Status and get my green card right away… Right?
The answer to this common question is: MAYBE.
Generally, an applicant’s eligibility to apply for a green card following the approval of the I-526 petition (both through the Adjustment of Status process and through the NVC/Consular process) will depend on the applicant’s country of chargeability and Priority Date, the latest application eligibility guidelines from USCIS and the Department of State, and the validity period of his or her nonimmigrant visa status. To file the Adjustment of Status application, in addition to meeting the Priority Date requirement, the applicant must also be physically present in the United States in valid eligible nonimmigrant (temporary) visa status.
The Priority Date for EB-5 investors is the filing date of the I-526 petition and would normally be reflected on the I-526 Approval Notice. To assess whether a particular Priority Date is current, the applicant must consult the monthly Visa Bulletin published by the Department of State (DOS). The DOS Visa Bulletin presently provides the Priority Date cutoffs that inform whether a green card application may be (1) filed, and (2) adjudicated.
The “Filing Dates” bulletin essentially enables applicants to file their green card applications before an immigrant visa is actually available, whereas the “Final Action” bulletin provides the cutoff where an immigrant visa is already available. Since processing times and visa availability fluctuates, U.S. Citizenship & Immigration Services (USCIS) determines on a monthly basis whether to accept any new applications under the “Filing Dates” bulletin.
NOTE: To be eligible to file a green card application, the applicant’s priority date must be earlier than the cutoff date. For instance, if an applicant’s priority date is Feb. 15, 2014 and the cutoff date on the Visa Bulletin is Feb. 15, 2014, the applicant is not eligible to file.
If the Priority Date is current according to the Visa Bulletin, and provided that the investor’s underlying nonimmigrant status allows for adjustment of status, the investor may process the green card application in the United States (i.e. without having to return to the home country and apply through the local consulate). However, if the Priority Date is not current, then regardless of the underlying nonimmigrant status, the investor may not file the Adjustment of Status application. In fact, backlogs in green card processing for investors from mainland China are quite substantial and it can take several years after the approval of the I-526 petition before the green card application can be submitted.
It is sometimes possible for the investor to maintain their nonimmigrant status in the United States while they await a green card number, but not always. Accordingly, it is a best practice for investors to proceed with the consular green card application through the National Visa Center (NVC). This entails paying the NVC fee bill within one year of issuance. If the NVC fees are not paid within this period, there is a risk that the NVC will close the case, and while the file can be re-opened, the associated costs and delays could be substantial.
Paying the consular processing fee to the NVC is particularly important for EB-5 investors whose children who are at risk of aging out. Pursuant to government guidance, paying the visa application fee to the NVC can help secure the protection of the Child Status Protection Act (CSPA) for these derivative applicants.
The consular processing fee is currently $345 per applicant. Applicants are able to stop the consular process at any stage if they ultimately chose to apply for Adjustment of Status in the United States once the Priority Date becomes current.