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What should we expect if we have EB-5 and EB-2 cases pending at the same time?

My wife is the principal applicant of our EB-5 I-526 application. I am the principal applicant of the EB-2 I-140. Both petitions are still pending. Is it true that whichever is approved first, the other one has to be withdrawn? We expect the EB-5 case to be approved first but it bears the risk to fail at the I-829 stage. We want to be able to keep our EB-2 I-140 during the conditional permanent residency of EB-5. Is it possible?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is not true that if one is approved the other has to be withdrawn. Even if you obtain conditional permanent residency via the EB-5, that does not invalidate the EB-2 petition. However to switch from a conditional EB-5 green card, to an EB-2, you would have to first surrender the EB-5 card, abroad.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may have both immigrant petitions, but when USCIS is ready to approve you for adjustment of status either under EB-5 or EB-2 (assuming you are in the U.S. in lawful immigration status), you will have to choose the basis for adjustment. You may process for an EB-2 permanent green card, but you will need to surrender a conditional green card if EB-5 is approved first. If you get two-year green card based on approved I-526 petition, you are required to file I-829 to remove conditions on the two-year green card within the 90 days window of the expiration of the two-year green card.

  • Avatar

    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Since the two applications are not under your name or your wife's name, it appears to me that you could have options here. Once her I-526 is approved she could go ahead and adjust status by filing for conditional permanent residency. If you prefer, you could keep your EB-2 petition active. If, as you predict, her case moves faster than your EB-2 and she gets to the I-829 approval stage before there is any traction on your EB-2, you could either join in her application or wait for the decision on her removal of conditions and act accordingly.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    No. If you become a conditional permanent resident from the EB-5 process, then your other permanent residency case cannot proceed.

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    Charles Foster

    Immigration Attorney
    Answered on

    It is not true that whichever petition is approved first, the other one has to be withdrawn. You can keep both approved petitions and pursue your application for adjustment of status, based upon your approved EB-5 petition. Should there be a failure at the I-829 stage, you'll still be eligible to re-apply based upon your approved EB-2 petition.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Once either immigrant visa is approved, the USCIS will certainly cancel the second one. Thus, if the EB-5 is approved first, the USCIS will cancel the EB-1, even if the EB-5 I-829 fails.

  • Avatar

    BoBi Ahn

    Immigration Attorney
    Answered on

    As long the job still exists and the employer is willing, the approved I-140 petition doesn't have to be withdrawn while you pursue the lawful permanent residency through the EB-5 I-526 petition. However, after you become a lawful permanent resident through the I-526 and immigrant visa processing, you will have to withdraw the permanent residency at the I-829 stage before you can start the immigrant visa or adjustment process through the I-140.

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    Barbara Suri

    Immigration Attorney
    Answered on

    The other one does not have to withdraw. The service will not force you to accept a benefit that you do not want. You have options. For example, you may both adjust under EB-5. You may both adjust under EB-2. Your wife may adjust under her EB-5. You may adjust under EB-2. You will not be allowed to do two adjustments each.

  • Avatar

    Hassan Elkhalil

    Immigration Attorney
    Answered on

    Each application is treated separately, as each application is for a different individual. Although you are included under your wife's I-526 and your wife is included under your I-140, you should be able to maintain both. You are secured under one of them.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It's possible to have both an approved I-140 and approved I-526. However, once you actually obtain a green card through one approval, it may be very challenging to try to get a new green card under the other category.

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