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Should I file an EB-5 I-485 when I have an EB-1 I-485 case pending?

I have a pending EB-1 I-485 application. I also filed an EB-5 application and recently my EB-5 I-526 got approved. I am from India. Should I file another I-485 based on the approved I-526, or should I just stick to the EB-1 I-485 and wait? Which one is faster?

Answers

  • Avatar

    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can file I-485 under both the EB-1 and EB-5 categories. However, by all accounts, EB-5 is faster than EB-1, particularly for Indian nationals.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You can file two I-485s, provided you disclose both. Since Indian EB-5 will retrogress in July, you should file the EB-5 adjustment now, although I suspect the EB-1 will be faster.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You can have two underlying immigrant petitions pending or approved and one pending I-485. Currently, there is no cut-off for the EB-5 category for Indian nationals as opposed to the EB-1 category. I-526 should be faster.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    It appears to me that it all depends as to when you filed your current I-485 based on EB-1. EB-1 is backlogged, but the EB-5 category for Indian citizens right now is current and you can certainly take advantage of that since your I-526 is already approved. Before you proceed further, I strongly recommend that you reach out to your attorney who filed your I-526 and got it approved.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You should file a new I-485 application based on the approved I-526. You can file this new I-485 application now, because you will have a current priority date.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    At the present time, the I-526 would be faster because there is no cut-off date for Indian-born EB-5 investors. That is not the case for EB-1 Indian-born applicants. You only need one pending I-485, but you can have both an I-526 and an I-140 pending/approved waiting for a current priority date/available immigrant visa number.

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    Barbara Suri

    Immigration Attorney
    Answered on

    If qualified, you will receive one green card only. According to the June 2019 Visa Bulletin, for India, priority dates have been reached for EB-1 cases filed prior to January 2015. Priority dates for EB-5 cases are current.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You may have both pending. Is the I-140 approved for the EB-1 case? You may recapture the earliest priority date on the second filing.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You can make a request to USCIS to transfer the pending I-485 to the now-approved I-526, because green cards are still "current" for that category.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You cannot have two I-485 applications pending at the same time. You would have to withdraw the initially filed I-485 if you wanted to file another I-485 based on the EB-5, but this would not be advisable since you would not only lose the time but would have to pay the I-485 fees again. Unless there is a reason or a problem with your first filed I-485 based on EB-1, there should not be any need to file your I-485 again.

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    Charles Foster

    Immigration Attorney
    Answered on

    Absolutely, you should file your application for adjustment of status based upon your approved EB-5 petition on Form I-526, given the fact that visa numbers are currently available for Indian nationals, and at some point, it could backlog. The advantages are significant. You can get work authorization for you and your dependent family members, as well as a travel document, and you can maintain those benefits even if there's some delay and approval of your application for adjustment of status. However, since you already have a pending application for adjustment of status on Form I-485, based upon your pending EB-5 one petition, it may be somewhat redundant. I gather that your EB-1 petition is not yet approved, thus, greater uncertainty. Generally speaking, you want to maintain every option you have, as you never can tell for sure which would be faster.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    I will wait to save yourself some money. Since you have a pending I-485, I will just wait.

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