How can I file for EB-5 adjustment of status while on an H-4 visa?

India Final action date is 08NOV19. You cannot file an adjustment unless your priority date is current under the Final Action date. You may be able to file under the Date for Filing (Chart B) if USCIS permits this—usually at the beginning of the fiscal year.

You may only file the I-485 if you are in any nonimmigrant status and the Priority Date for that case is current.

An EB-5 investor on H-4 status is permitted to file for Adjustment of Status if they have an I-526/I-526E approved, and if there is no waiting list for their category. If you filed your I-526E in one of the new categories (rural, high unemployment, or infrastructure) under the new reformed rules, there is currently (as of Feb. 2023) no waiting list, and you and your family could thus file AOS. A pending AOS allows the applicant to stay in the US to await adjudication without accumulating any unlawful presence. If filed along with I-131 and I-765, it can also allow you to work and travel while awaiting AOS. However, the final adjudication of the AOS itself may be delayed if a waiting list appears for your category and country in the future, as these waiting lists are often retroactive. The main benefit is that the AOS itself serves as a placeholder allowing presence, work, and travel in the US during this potentially-lengthy adjudication time. The AOS work permit is also significantly more flexible and lenient than the very specific work requirements of the H-1B.

Generally, H-1B and H-4 visas are dual intent visas. This means that you can file for Adjustment of Status while you hold either visa category. You will also be able to travel abroad and come back to the US with your H-4 visa and your wife will return on her H-1B to continue working for her H-1B sponsor. The adjustment of status processing times do not change on the basis of the visa category you may hold. To check the processing times of your Form I-485 go to the USCIS website.

If USCIS approves your I-526E petition and you are in the United States in H-4 status, then you and your wife can file adjustment of status applications. You have many detailed questions. You need a consultation appointment with an immigration attorney to address these detailed questions.

A person qualified for adjustment and in valid NIV status can file for an adjustment, assuming the priority date is current at the time of filing. The EB5/AOS processing times are not impacted by your NIV status at the time of filing.