How does the 90-day requirement for change of status work for EB-5 investors?

This is an involved situation. You need a consultation appointment with an immigration attorney.

The 90-day rule is a USCIS policy that presumes a nonimmigrant visa holder who enters the United States and engages in conduct inconsistent with their nonimmigrant status within 90 days of entry made a misrepresentation at the time of admission or application for a nonimmigrant visa. For EB-5 investors with a TN visa, the 90-day rule can be problematic as the TN visa is a nonimmigrant visa that does not allow for immigrant intent. If a TN applicant applies for an EB-5 visa within 90 days of entering the U.S. on a TN visa, USCIS may presume that there was a misrepresentation of intent upon entry. However, there are some exceptions to the 90-day rule. It does not apply if circumstances changed after entering the U.S., such as job loss or employer going out of business. To understand the implications of the 90-day rule for a specific case, it is critical that you carefully evaluate your plans.

It is advisable to wait 90 days after your admission to the U.S. in any nonimmigrant status (except H and L statuses) before applying for adjustment of status. Your previous trips to the U.S. are not relevant to when you can/should file for adjustment of status after entering the U.S. on a temporary visa (like TN). Moreover, it is important to note that once you file for adjustment of status based on your I-526 petition, you cannot depart the U.S. until your advance parole application is approved - these applications are taking approximately 8-10 months to approve. Departing the U.S. before this document arrives will cause your adjustment of status application to be abandoned. I strongly recommend speaking to an immigration attorney about your upcoming applications and plans.