I am an EB-5 investor. I received my conditional green card a year ago with a direct investment. This investment was not successful and ceased operations. My wife got her green card years ago through her parents. She is planning to submit a family-based immigration application (Form I-130) for me. When can I file an I-485 adjustment of status application based on this I-130? I am worried that when my conditional green card expires next year, I will have to leave the country and wait for USCIS to process the I-130 before I can come back.
You should first withdraw your conditional permanent residency as the EB-5 business has failed. You need to obtain legal status in the U.S. when you are able to file your residency application on the basis of the I-130 petition.
You have to obtain your immigrant visa abroad and you need to surrender your current status abroad before your are scheduled for your family-based immigrant visa.
You should consider filing as soon as possible.
Unfortunately, you have not told us one very important piece of information. Is your wife eligible to become a U.S. citizen already? If she is, that will simplify everything. She could become a U.S. citizen and immediately you can file for a green card through petition for alien relative, Form I-130. Otherwise, if you need to file as a spouse of a green card holder, you will be subject to country-based priority dates and available visa quotas each year.
In your scenario, it is all about timing. Have your wife apply for her citizenship. File your I-130 based on your marriage to your wife. Because you are filing based on your wife's green card, your visa is not currently available so you will have to wait. However, as soon as your wife receives her citizenship, you can file for your I-485. Otherwise, you will have to wait until your visa becomes available because you filed based on her green card.
Since your wife is a green card holder, the approval of your status through her petition depends upon the country you are from and the number of visas issued per year for that specific category. Once your wife becomes a U.S. citizen, you will no longer be subject to the visa numbers and the process will be much faster. You may want to consult with an immigration attorney to discuss your options and the best way to proceed.
You cannot adjust status until a visa number is available under the family. If you think your I-829 will be denied for valid reasons, file I-485 as soon as a visa number is available.
If your priority date is current through your wife, you can file the I-485 immediately and that will allow you to remain here. At the interview, for your wife's case, you will need to execute an I-47 to abandon your current green card.
Perhaps you could have her file for you and you can consular process for the visa.
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