By Marta Lillo
The EB-5 Reform and Integrity Act of 2022 (RIA) allows EB-5 investors to submit Form I-526 and Form I-485 together, even before the first one is approved or denied.
This process is called concurrent filing and has become a popular choice for EB-5 immigrant investors already living in the United States who want to remain in the country while adjusting their immigration status (AOS) and being able to work.
It’s a “development that’s becoming increasingly significant in our field,” says Michael Harris, EB-5 immigration attorney at HarrisLaw. Initially a common practice for other nonimmigrant visas like tourist and work, it became available for EB-5 investors because of RIA, “marking a notable shift in the program’s dynamics,” he adds.
“While this shift brings new opportunities, it also underscores the need for meticulous evaluation of each investor’s eligibility for AOS,” Harris says.
EB-5 investors use concurrent filing to change from nonimmigrant status to conditional permanent resident status and apply for a renewable work/travel permit. Holders of other valid nonimmigrant vistas, like the F-1 or H-1B, also use this alternative to apply for EB-5 and improve their immigration status.
Pros and cons of concurrent filing for other U.S. nonimmigrant visa holders
For Harris, intent is crucial for concurrent filing for U.S. nonimmigrant visa holders aiming at EB-5 to work. “A critical aspect here is addressing any potential preconceived intent issues, particularly for those entering the U.S. under nonimmigrant visas like tourist or student visas, which do not inherently support dual intent. Consequently, a substantial portion of the applicants we see opting for concurrent filings are those already on dual intent visas, such as the H-1B,” Harris says.
The attorney explains that the U.S. Department of State (DOS) allows tourist visas for foreign individuals who intend to visit the U.S. to conduct research and due diligence related to an EB-5 investment, provided “they do not intend to enter the United States to pursue adjustment of status,” according to the DOS Foreign Affairs Manual.
According to Harris, “the DOS clearly stipulates that entering the U.S. with a tourist visa should not be with the intention to immediately turn around and apply for AOS.”
“The risk of misinterpretation regarding the intent upon entry, and the associated legal complexities, cannot be understated,” he insists.
Conditions for concurrent filing to obtain an EB-5 visa to work
In addition, concurrent filing applies to EB-5 candidates applying for travel authorization or advance parole travel documentation (Form I-131) and employment authorization (Form I-765). This way, applicants can work and travel while waiting for the adjudication of their I-526.
For concurrent filings to be successful, specific conditions must be met. Applicants filing for an EB-5 visa must file their I-485 concurrently with Form I-526 when their priority date is current under the Final Action Dates chart, or the USCIS has specified using the Dates for Filing chart in the visa bulletin.
Lynne Feldman, an EB-5 immigration attorney at Feldman Feldman & Associates, explains: “If someone is in the U.S. on any nonimmigrant status and their priority date is current, they can concurrently file the I-485 adjustment application with the ancillary benefits for a work and travel permit. Downside is that unless they are in L or H nonimmigrant status and have that visa, they can’t travel internationally until the travel permit (advance parole) is received. If they leave the U.S. without this, the I-485 will be denied.”
Also, there must be visa availability for the selected EB-5 project category. That’s why it’s common for Chinese and Indian investors, whose filing dates are not current, to concurrently file after choosing projects from the set-aside categories of the targeted employment area (TEA) kind, which have faster processing times.
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