How can we apply for EB-5 with a pending EB-2 application?
I am from India and have filed an I-485 under EB-2. I am the primary applicant. Since the Indian EB-2 priority date is moving very slowly, we are planning to invest in EB-5. However, I want to keep my EB-2 application active and invest in EB-5 under my wife's name. Her I-485 is pending also as my dependent. Is it still possible for us to apply for EB-5? Will my wife need to be the main applicant?
Yes, applicants for immigrant processes (green cards) can submit other immigration petitions while the original ones are pending. Once one is approved, the other can be withdrawn. Please retain an immigration lawyer who can help you with tracking all processes.
In this case the EB-5 investor can be either the husband or wife. Once the EB-5 petition is approved, then the EB-5 investor, and spouse and children if applicable, can apply for the conditional permanent residency. However, if you have applied already for permanent residency then why do you need to file an EB-5 petition?
If you are currently in the United States on an H-1B or L nonimmigrant visa, you have dual intent. That means you have not affirmatively expressed your intent to become a permanent resident even though you have filed the I-485. Otherwise, your wife should file the EB-5 investment petition.
You may apply under different employment-based categories, EB-2 and EB-5 concurrently. EB-5 is no longer a fast option to immigrate or adjust status in the United States because I-526 processing takes, on average, 17 months these days.
As you stated, your wife will be the petitioner for your upcoming EB-5 petition. Once approved, you and your wife both can then apply new I-485 applications much like you did for your EB-2 petition. It is entirely proper to have multiple I-485 applications for different employment-based preference categories like EB-2 and EB-5. In the alternative, you may also be able to “interfile” your pending I-485s to attach them to the approved EB-5 petition. That way, you would not incur the cost of filing new I-485 applications. But, your immigration lawyer must research if interfiling is available here since the principal beneficiaries of both preference categories are not the same. In other words, you were the principal beneficiary of your EB-2 petition and your wife would be the principal beneficiary of the EB-5 petition. This may or may not cause interfiling to be available here. It has to be further confirmed.
John J Downey
Placing your wife is the best bet. You are the primary applicant on the EB-2, so keeping that viable is important.
There is nothing to prevent you from having two options at the same time. Thus, you could maintain your wife's application for adjustment of status and presumably yours too based upon her EB-2 petition, and at the same time seek to qualify for lawful permanent residency sooner by making an EB-5 investment presumably through a regional center. You could do so in either your name or your wife's name, depending upon your preference. There is no significant difference time-wise and as you indicated, there is no backlog under the quota for Indian nationals in either case.
Provided you can show lawfully sourced money, either you or your wife can file for an EB-5 visa and then file a new adjustment based on the EB-5 approval. One used to be able to interfile the approval, but it appears now USCIS wants a new adjustment application.
There is no reason why you cannot do it concurrently. However, in order to best discuss strategy, I would recommend contacting an attorney.
If you already have filed the I-485, adjustment of status application, then you are almost at the end in the green card process. Unless the priority date has retrogressed in that category since you filed the I-485 and you have an approved I-140, it is just a matter of time until the officer adjudicates it. With the EB-5 process taking two years these days, it is not the fastest way to obtain the green card anymore.
You wife can be the principal applicant in the EB-5 application. When your wife and her family are interviewed in the consulate or USCIS, the officer will confirm with you if you want to give up the EB-2 application.