By Kristal Ozmun
The second step in the pathway to legal permanent residence in the employment-based fifth preference category (EB-5) is to file for conditional permanent resident (CPR) status. An immigrant investor can do this if outside the United States via consular processing or, if in the United States, via the adjustment of status (AOS) process. Under either process, an immigrant investor’s dependents can apply for CPR status concurrently with or after the immigrant investor; not before.
The AOS and consular processing serve as background checks on the immigrant investor and his or her dependents, if any. Under either process, an individual must demonstrate that he or she is not inadmissible to the United States, for example subject to a ground of inadmissibility. Grounds of inadmissibility include those related to health, criminal reasons, and national security concerns, among others. For example, an individual with a communicable disease of public health significance such as active tuberculosis may be deemed inadmissible to the United States and thus unable to become a CPR.
In both AOS and consular processing, the Department of State (DOS) visa bulletin plays an important role. The visa bulletin governs when an immigrant investor is eligible to apply for CPR status. More specifically, as a general rule, an immigrant investor’s priority date must be earlier than the date listed in Chart A of the bulletin to apply for CPR status. The priority date is the date the immigrant investor filed the I-526, Immigrant Petition by Alien Entrepreneur, with the USCIS. Alternatively, if the visa bulletin reports a “C” for “current,” an immigrant investor can also file for AOS or consular processing. Immigrant investors and their counsel should familiarize themselves with the visa bulletin and check it regularly.
ADJUSTMENT OF STATUS FOR FORM I-485
Application for adjustment of status is made on form I-485, Application to Register Permanent Residence or Adjust Status. If an immigrant investor is in the United States in another valid non-immigrant status such as H-1B or F-1, he or she can file form I-485 as described above – when his or her priority date is before the date listed on Chart A of the visa bulletin or when the visa bulletin is current. The exception to this rule is that in some months, DOS allows immigrant investors to rely on Chart B of the visa bulletin and file their AOS applications earlier as the date listed on Chart B is always earlier than that of Chart A. For clarity, Chart B allows earlier filing of an AOS application; it does not provide a faster path to CPR status. An immigrant investor is still only entitled to CPR status when his or her priority date is earlier than that listed on Chart A of the visa bulletin. Evidence submitted in support of form I-485 includes a copy of the immigrant investor’s birth certificate and evidence of his or her underlying status.
Form I-485 must be filed concurrently with form I-944, Declaration of Self-Sufficiency, to demonstrate that one is not inadmissible based on the public charge ground of inadmissibility. In other words, an individual is inadmissible to the United States if he or she is likely to become a public charge. A public charge is an alien who has received one or more public benefits, such as federally funded Medicaid, for more than 12 months within any 36-month period. Receipt of a public benefit is not determinative of the issue though. An analysis of whether someone is likely to become a public charge looks at factors such as age, health, and financial resources. Evidence submitted in support of form I-944 includes a tax transcript, bank account statements, and evidence of insurance.
Form I-485 may be filed with form I-765, Application for Employment Authorization, and form I-131, Application for Travel Document. While these forms are optional filings, there is no downside to making them, such as no additional filing fee. Additionally, many classes of non-immigrants must file form I-131 to travel internationally during the pendency of an AOS application. For example, a student in F-1 status must secure an advance parole document, the card that issues as a result of approval of Form I-131, prior to international travel. Travel without the advance parole will result in a determination that the F-1 student abandoned his or her AOS application. USCIS will adjudicate form I-131 and form I-765 prior to form I-485. Thus, an immigrant investor may have work and travel authorization before securing CPR status. Upon approval of form I-485, an immigrant investor becomes a CPR.
CONSULAR PROCESSING ON FORM DS-260
Application for an immigrant visa via consular processing is made on form DS-260, Immigrant Visa Electronic Application. However, a number of interim steps precede this filing including transfer of the I-526 petition to the National Visa Center (NVC) and payment of the immigrant visa fee to NVC once the immigrant investor’s priority date is earlier than Chart B on the visa bulletin. After payment of the immigrant visa fee, form DS-260 unlocks and can be completed on the Consular Electronic Application Center website. Supporting civil documents such as birth certificates and police certificates are uploaded after filing form DS-260. A separate DS-260 and supporting documents must be submitted for the immigrant investor and each of his or her dependents, if any.
After submission of form DS-260 and civil documents, NVC reviews the case and issues a checklist identifying deficiencies in the civil documents, or issues a Processing Complete Letter. After issuance of the Processing Complete Letter, NVC “closes” the file and places it in a queue for future use in quota delayed cases, or schedules an interview if no quota delay exists. Approximately one month before an immigrant investor’s priority date is current under Chart A of the visa bulletin, the NVC “reopens” the case, schedules a consular interview, and transfers the case to the consulate. The interview notice contains important information including instructions regarding the medical exam that must be completed prior to the interview.
An immigrant investor must bring the form DS-260 confirmation page and other items to the interview including his or her passport and a copy of the I-526 petition. If approved, the passport will be returned with the immigration visa approximately one week later at a designated location, often a bank. The immigration visa is valid for six months from the date of the medical exam. An immigrant investor must then pay an online immigrant fee to USCIS for later issuance of the green card. He or she must enter the United States within the validity period of the immigrant visa. An immigrant investor is in CPR status as of the date of admission to the United States.
COMPLEX VISA PROCESSES
The AOS and consular processing are both highly complex. Further, there are advantages and disadvantages to both that should be fully explored prior to settling on a path to CPR status. For example, contrary to popular belief, consular processing is typically faster than AOS. Finally, keep in mind that, whatever the ultimate choice, an immigrant investor should always check consular processing on the I-526 petition. This is because one can easily switch to AOS from consular processing without any additional filings or fees. However, if AOS is checked on the I-526 petition, an immigrant investor must file form I-824, Application for Action on an Approved Application or Petition, and pay the associated filing fee before consular processing. Form I-824 typically takes many months to process adding to the already lengthy overall EB-5 timeline.
Read about the next step in the EB-5 process: Planning for Redeployment of EB-5 Capital
 On July 29, 2020, the U.S. District Court, Southern District of New York issued a nationwide injunction regarding the current public charge rule. USCIS issued guidance stating that Form I-944 is not required for AOS filings submitted July 29, 2020 and after.