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How can I transfer my permanent residency application to the EB-3 category with a pending I-829?

I am an EB-5 investor from mainland China with an approved I-526. I am currently working in the U.S. on an H-1B visa and already have my EB-3 I-140 approved. My question is, if my EB-5 priority date becomes current first and I adjust my status based on it, what happens to my EB-3? When my EB-3 priority date becomes current, and if by then I have already filed the EB-5-based I-829, is it still possible for me to transfer to an EB-3-based I-485 since EB-3 is processed faster?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is not possible to directly transfer but we have completed this procedure successfully. First you have to surrender the conditional green card abroad and then you have to complete the new EB-3 application via consular processing.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, both EB-3 and EB-5 can be simultaneously filed since each is a separate and distinct visa. However, once you have obtained permanent residency under one of the EB categories, the USCIS will cancel the other pending petition.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may keep both petitions. However, if your EB-5 conditional permanent residency is granted first, you generally cannot have another lawful permanent resident status based on another category unless you give up your EB-5 lawful permanent resident status at the EB-3 I-485 interview stage.

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    Stephen Berman

    Immigration Attorney
    Answered on

    You can file both if you want.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Once you are a PR you can't have another PR but you can abandon your conditional residency at the interview on the EB-3.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    No problem at all. After you file your I-829, you might want to wait for it to get approved. If it gets denied, then you can file I-485 once your priority becomes current on your approved EB-3 petition. Alternatively, if you have already filed for the I-829, but have not heard one way or another, you could file I-485 based on your approved EB-3, provided that it has become current. Once one of your applications is approved, you should withdraw the other one.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    There are two separate tracks. If you receive your legal permanent residency, LPR, under the EB-5, then the pending EB-3 application will be withdrawn. If you receive your LPR based on EB-3, then you will withdraw the pending Eb-5 application. Keep both applications now, and whichever application is approved first, then withdraw the pending application.

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    Charles Foster

    Immigration Attorney
    Answered on

    If your EB-5 priority date becomes current first, you would want to apply for adjustment of status, and if and when you become a lawful permanent resident, your approved I-140 petition under the EB-3 preference would be moot, but remains valid. If you have already obtained conditional permanent residency and filed your I-829 petition to remove conditions, there will be no need to transfer to an EB-3-based I-485 to re-file for an application for adjustment of status, based upon your approved EB-3 petition since you are already a lawful permanent resident. It would be redundant and unnecessary, and not necessarily any faster. The only reason you would want to re-file an application for adjustment of status on Form I-485 is for some reason your I-829 petition was ultimately denied.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    It is possible to have two permanent residency cases (EB-5 and EB-3) that are pending. However, after you become a conditional permanent resident, then it would not make sense to file an I-485. When you are a conditional permanent resident, you cannot file a separate I-485 application to apply to become a U.S. permanent resident.

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