Navigating Adjustment of Status for EB-5 Investors: Concurrent Filing, Status Strategy, and Risk Management

By Robert C. Divine and Brandy Williams 

The immediate availability of reserved visa numbers and the ability to file concurrently under the EB-5 Reform and Integrity Act of 2022 (RIA) have fundamentally changed the landscape for many EB-5 investors.  

One of the most significant changes resulting from the RIA is the ability for certain investors in a “current” visa category for their country of birth to file Forms I-526 or I-526E simultaneously (investor petition), I-485 (adjustment of status), I-765 (employment authorization document), and Form I-131 (advance parole). 

Adjustment of status (AOS) within the U.S. can offer substantial benefits, including employment authorization and travel flexibility while the green card application is pending. Given the United States Citizenship and Immigration Services (USCIS) policy to pause an adjustment application until the petition is adjudicated and then, for as long as it might take for a visa number to become available (in case of a retrogression), a concurrent filer for all practical purposes can begin to live like a permanent resident.  

However, in practice, the decision to concurrently file is rarely mechanical. The EB-5 investor’s immigration history, manner of entry, maintenance of status, travel needs, family composition, and visa availability all can affect whether adjustment is the best strategy—or whether it creates avoidable risk. 

ENSURING ELIGIBILITY BEFORE CONCURRENT FILING 

Accordingly, before treating concurrent filing as a strategic advantage, EB-5 counsel should first ask a more basic question: is this investor eligible to adjust status in the United States? That analysis starts with potential bars under the Immigration and Nationality Act (INA) §§245(c) and 245(k), including the Visa Waiver Program (VWP) entry, and should also account for any facts that may affect admissibility or the favorable exercise of discretion. 

INA §245(c) can bar adjustment where an applicant has engaged in unauthorized employment, is not in lawful nonimmigrant visa status at the time of filing, failed to maintain lawful status since entry continuously, or otherwise violated the terms of a nonimmigrant classification. These issues most often arise from unauthorized work, gaps between statuses, F-1 or B-1/B-2 visa activities inconsistent with the classification, employment outside the scope of an H-1B, L-1, E-2, or other work-authorized status, or filing the I-485 after the applicant is already out of status. 

For qualifying employment-based applicants, including EB-5 investors and eligible derivatives, INA §245(k) may preserve adjustment eligibility even if last admitted other than in a nonimmigrant visa status (such as parole). This is true despite certain violations if the aggregate period of unauthorized employment, failure to maintain lawful status, or violation of status does not exceed 180 days since the applicant’s most recent lawful admission (with the clock not reset by returning on parole). Section 245(k) should be viewed as a limited safety valve, not a planning tool. Each applicant’s history should be reviewed separately, and potentially countable violations should be calculated conservatively before relying on the provision. 

Additionally, this section does not waive separate grounds of inadmissibility or independent adjustment defects. It does not cure fraud or willful misrepresentation; criminal or security grounds; unlawful presence history; prior removal or reinstatement issues; the absence of inspection and admission or parole; or admission through the VWP. These statutory limitations are only the first step in the analysis; even if an applicant can overcome the threshold bars or is not subject to them at all, USCIS may still consider whether the facts warrant a favorable exercise of discretion. 

NAVIGATING EB-5 ADJUSTMENTS: CAUTION AND CLARITY IN INTENT AND DOCUMENTATION 

Discretionary risk usually depends on situations that don’t align perfectly with the law. In EB-5 adjustment cases, concerns may arise where the applicant appears to have entered as a B-1/B-2 visa visitor while already intending to remain permanently, took concrete EB-5 or employment steps inconsistent with visitor status soon after entry, gave misleading answers to consular or U.S. Customs and Border Protection) (CBP) officers, even if the conduct does not rise to a formal misrepresentation finding, or engaged in obvious status violations that fall within the numerical protection of §245(k) but still reflect poorly on the case.  

These facts should not be ignored or buried. Applicants need to distinguish between a valid change in intent after admission and any signs of prior intent to immigrate or of dishonest behavior. They should provide documentation showing the legitimate reason for their entry, when they decided to pursue EB-5, and any events that explain why they are applying for adjustment of status later. At the same time, the filing should affirmatively present favorable equities, such as a clean immigration history, prompt compliance after an issue is identified, lack of adverse intent, credible explanations for timing or status questions, family or business ties in the United States, job-creating investment activity, tax compliance, community involvement, and other facts showing that the applicant merits adjustment. 

Recent USCIS policy revisions highlight the U.S. agency’s increased focus on analyzing factors supporting an applicant’s decision to adjust status within the U.S. rather than complete an immigrant visa process abroad, making such evidence of favorable equities an integral piece of new adjustment filings.   

NAVIGATING THE TIMING AND AGING TRAPS FOR EB-5 IMMIGRANT FAMILIES 

Timing can be just as important as eligibility. AOS may be filed only when an immigrant visa is immediately available under the Visa Bulletin chart designated by USCIS for that month. Still, later retrogression can prevent final adjudication even after the I-485 has been accepted. The result can be a case that remains pending for years, leaving the investor and derivatives dependent on interim benefits unless they have preserved an independent nonimmigrant status strategy. 

For families with children nearing age 21, that same timing problem carries an additional consequence: potential loss of derivative child eligibility. The Child Status Protection Act (CSPA) may protect certain derivative children from aging out, but it does not eliminate the risk of aging out. In employment-based cases, including EB-5, the child’s CSPA age generally depends on the child’s biological age when a visa becomes available, reduced by the time the underlying immigrant petition was pending, and the child must also seek to acquire permanent residence within the required period. A visa becomes available for CSPA age-calculation purposes under the Final Action Dates chart, even though the Dates for Filing chart may sometimes govern filing eligibility. This distinction can be outcome-determinative for children near age 21 because a child may be permitted to file during one period but, because of visa unavailability after petition approval, may not obtain a favorable CSPA age calculation. 

Counsel should closely track the child’s biological age, the I-526E filing and approval dates, the applicable priority date, and monthly Visa Bulletin movement, because a brief window of visa availability may require immediate filing to preserve eligibility. If the child’s calculated CSPA age may creep over 21, parents should consider backup options early, including whether the child may qualify for an independent nonimmigrant strategy, a separate immigrant visa pathway, or other long-term status planning outside the parent’s EB-5 case. 

ASSESSING EMPLOYMENT AND TRAVEL RISKS BEFORE AND DURING THE ADJUSTMENT OF STATUS  

When an I-485 may remain pending for an extended period, interim benefits are not merely administrative conveniences; they often determine whether the investor can continue working, travel when necessary, and maintain practical flexibility while waiting for visa availability or adjudication. 

Employment Authorization Document (EAD) adjudication times can vary substantially, and current processing times may approach 12 months in some cases. Applicants should not assume immediate work authorization simply because the I-485 has been filed. In addition, renewal planning has become more important because renewal applications filed on or after October 30, 2025, generally do not receive automatic extensions of EADs. Applicants should file renewals as early as permitted and should plan for possible employment gaps if the new card is not issued before the prior EAD expires. Working before the EAD is approved, or after it expires without another valid basis for employment authorization, may constitute unauthorized employment and could affect continued AOS eligibility despite Section 245(k). 

Likewise, Advance Parole (AP) processing times can vary, and applicants should avoid international travel after filing Form I-485 unless they have a valid basis for reentry and have carefully evaluated the risks of inadmissibility. Departure before AP is approved may result in abandonment of the I-485 unless the applicant qualifies for a recognized exception, such as certain H-1B or L applicants who continue to travel with valid underlying status and visas. Even where the I-485 is not deemed abandoned, a separate caveat applies. If the applicant departs the United States while the Form I-131 remains pending, USCIS will consider the I-131 abandoned and deny the Advance Parole request. 

Before recommending travel during a pending AOS case, an applicant should separately assess whether the facts create abandonment, inadmissibility, or reentry concerns, including prior immigration violations, unlawful presence issues, pending removal proceedings, and any ground that could be triggered or exposed by departure and reentry. 

MAINTAINING A VALID NONIMMIGRANT STATUS AND CAREFUL PLANNING ARE ESSENTIAL 

Where feasible, the more conservative approach is to maintain a valid, independent nonimmigrant status until permanent residence is approved, rather than relying exclusively on a pending I-485. H-1B and L-1 status generally provide the strongest backup because AOS filing is not inherently inconsistent with those classifications. Timely extensions, compliant employment, and coordinated job changes remain essential. An I-485 EAD can provide valuable flexibility but using it may weaken the ability to preserve or return to an underlying status. Counsel should evaluate those consequences before the applicant stops complying with H-1B, L-1, E-2, F-1, or other status requirements. 

Non-dual-intent categories require closer review. F-1 students must preserve SEVIS compliance and any authorized employment; B-1/B-2 visitors must avoid inconsistent activities; and E-2 investors must maintain treaty eligibility and enterprise operations. H-1B and L-1 nonimmigrants and their derivative family members in H-4/L-2 status may be able to travel on their underlying status. In contrast, others should generally avoid departing without approved Advance Parole and reconfirmed admissibility. Spouses and children also need separate status plans, particularly children nearing age 21. I-94 dates, petition validity, visa stamps, EAD/AP renewals, passport expiration, school program dates, grace periods, and Visa Bulletin movement should be tracked well in advance to avoid preventable gaps during retrogression or delayed adjudication. 

Adjustment has become one of the most important tools available to EB-5 investors already present in the United States, but concurrent filing should be treated as an opportunity, not a shortcut. The strongest strategy is one that accounts for the client’s immigration history, visa availability, derivative family issues, travel needs, employment authorization, and backup status options before the I-485 is filed. 

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