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Who is eligible to file I-485?

I am an EB-5 investor and am still waiting for my I-526 to be approved. I heard that I would be able to file a change of status application (I-485) if my I-526 got approved while I''m physically in the U.S. on a legal visa. Does this apply to all kinds of visas? If I visit the U.S. under an B1/B2, then during the valid period of my I-94, my I-526 is approved, can I then simply file a change of status in the U.S.? After filing, will I be able to stay legally in the country during the adjudication of I-485?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You may file for adjustment of status if your I-526 is approved and you are in the U.S. in a lawful non-immigrant status. Applying for adjustment of status while on B-1/B-2 has specific issues and you should consult an immigration attorney to file your adjustment case.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is dangerous to enter on a visitor visa and apply to adjust since this is a tourist visa. However, if you are present in the U.S. with another visa, such as an F1, and have not worked without permission or been out of status, then you can apply to adjust if your priority date is current under the final action date published in the Visa Bulletin.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Yes, you can file for adjustment of status (I-485) while in B-1/B-2 status. The only caveat is in order to avoid "fraudulent intent" (such as entering with nonimmigrant/visitor intent, then immediately filing for immigrant/adjust of status), you may want to strategize with your attorney on the timing of filing the adjustment of status.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    It is not advisable to file an I-485 application while you are in B-1 or B-2 status. The B visa category is not intended for extended stays in the U.S. You may have significant problems with USCIS, U.S. CBP or U.S. DOS in the future if you file an I-485 application while you are in B-1 or B-2 status.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If you are in a valid nonimmigrant status when your I-526 is approved and there is an immigrant visa number immediately available - i.e. your priority date is current - then you may file an I-485 adjustment of status application, assuming you are otherwise eligible to adjust status.

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    Charles Foster

    Immigration Attorney
    Answered on

    One is eligible to apply for adjustment of status on Form I-485 only once your EB-5 immigrant investor petition on Form I-526 is approved, provided you are in lawful status and visa numbers are available. If you are in the U.S. in B-1 or B-2 non-immigrant status and during that period of time your I-526 petition is approved, you could file an application to adjust status on Form I-485. However, should you do so within a 90-day period of your entry into the U.S., as there is a presumption of fraud. If, on the other hand, more than 90 days have passed, as long as you are in valid status you should be eligible to file your application for adjustment of status.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The B-1/B-2 is typically a non-immigrant intent visa. As a result, the duration of either visa tends to be relatively short in terms of days or a few months. In a likelihood, you will not have enough time to process your I-485 in the U.S. after the I-526 is approved. Consult an immigration attorney before you put your plan into operation.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Generally, yes. There is a prohibition on filing for AOS/COS within 90 days of admission into the U.S. Your I-526 lawyer can assist you.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    While it is possible to file I-485 while on B-1/2 status, it is rarely advised, especially if you have the intention of immigrating upon your B-1/2 entry. However, if you are to file I-485, it should be filed only after 90 days from entry. Otherwise, USCIS may deny your I-485 for having an immigrant intent when you entered on the B-1/2 visa.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Technically, yes. You may adjust status by filing I-485 if you are in U.S. under the valid B-1/B-2 and your I-526 just happened to be approved during that legal stay I-94 duration. However, be careful about the "immigrant intent" misrepresentation at the border (airport). Once your I-485 is filed, you may legally stay during its pending adjudication.

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    Robert West

    Immigration Attorney
    Answered on

    Complicated question. The answer is sometimes under proper conditions. Speak to your lawyer for a detailed answer.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, if in a legal status when the I-526 is approved, the adjustment documents may be filed here. If your whole family applying with you is not here, then there are strategy decisions to be made.

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