Can we change a pending I-485 application from EB-2 to EB-5? - EB5Investors.com

Can we change a pending I-485 application from EB-2 to EB-5?

We are India natives. My husband has an EB-2 that got current for date of filing last month, and both of us filed for I-485 in the EB-2 category. I got my I-526 approved this month. Would we be able to change our pending I-485 from the EB-2 category to EB-5 or is a new I-485 recommended? By filing a new I-485 based on I-526 approval, would there be a risk of RFE and process delay because of multiple I-485 applications?

Answers

Salvatore Picataggio

Salvatore Picataggio

Immigration Attorneys
Answered on

You may be better served with filing a new I-485, but you can transfer a I-485 (more accurately, replace the underlying petition) as well, but that is a discretionary decision by the officer to allow that replacement, while a new I-485 will just be a new I-485.

Bernard P Wolfsdorf

Bernard P Wolfsdorf

Immigration Attorneys
Answered on

In prior years, we would advise to submit the EB-5 approval and ask them to adjudicate under EB-5, however presently USCIS seems okay with having more than one I-485 adjustment. However, if your nonimmigrant visa status has expired, then you are not eligible to file a second adjustment unless you request substitution of one petition for the other. This is because to adjust under EB-5, you must be in valid nonimmigrant status.

Lynne Feldman

Lynne Feldman

Immigration Attorneys
Answered on

I would just leave the one I-485 and then at the interview you can change the category. The EB-2 green card is more beneficial if it comes first as it won''t be conditional.

Belma Demirovic Chinchoy

Belma Demirovic Chinchoy

Immigration Attorneys
Answered on

I recommend that you consider this carefully, if your EB-2 was truly current (i.e., final action date is current) you may probably want the EB-2 green card as it is a permanent one. In general, you can not change the basis of an I-485, but must file a new application.

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