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On March 15, 2022, President Biden signed new EB-5 reform measures into law. The EB-5 Reform and Integrity Act (RIA) of 2022 allows petitioners to file their I-526 and I-485 petitions for adjustment of status (AOS) simultaneously. As a result, EB-5 applicants can enjoy all the benefits of a green card before getting the green card approval. Read on to find out how.

The EB-5 Immigrant Investor Visa Program

The EB-5 Immigrant Investor Visa Program is a United States investment-based immigration program that provides a pathway to permanent residency and citizenship, also known as a green card, for foreign investors who make a significant investment in a new commercial enterprise that creates jobs in the United States.

To qualify for the US EB-5 Visa program, an applicant must make a minimum qualifying investment of either USD $1,050,000 or USD $800,000, depending on whether the investment is made in a targeted employment area (TEA) or a non-TEA. TEAs are defined as areas with a high unemployment rate compared to the national average or rural areas.

The EB-5 Visa requirement includes the creation of at least 10 full-time jobs for qualified U.S. workers within two years of the investor’s conditional green card approval. Job creation can be direct, where the jobs are directly tied to the investment project, or indirect, where the investment stimulates job growth in the community.

The EB-5 visa benefits include a pathway to permanent residency (US green card) for the investor, their spouse, and their unmarried children under 21 years old. This allows them to live, work, and study in the United States permanently. Read our article, Benefits of the US EB-5 Program to know more.

How the EB-5 Reform and Integrity Act of 2022(RIA) changed filing for Adjustment of Status

Before the RIA was passed, an investor’s Form I-485 Application for Adjustment of Status could not be filed until after their I-526 petition had been approved. This meant that applicants already residing in the U.S. on non-immigrant visas were not lawfully allowed to work while awaiting adjudication, as well as being subject to travel restrictions and other limitations. Until the I-526 adjudication, they were also not allowed to apply for a work permit.

However, since the RIA was passed, investors can now file Form I-485 before their Form I-526 is approved. This means that Form I-485 can be filed at the same time as Form I-526 – hence the name ‘concurrent filing’.

What is Adjustment of Status (AOS) Concurrent Filling for EB-5 Investors?

Adjustment of Status (AOS) Concurrent Filing for EB-5 Investor

Concurrent filing in the context of the EB-5 Immigrant Investor Program refers to the ability to file certain related applications or petitions concurrently. Specifically, it allows an EB-5 investor to file the I-526E petition (Immigrant Petition by Alien Entrepreneur) and the I-485 application (Application to Register Permanent Residence or Adjust Status) together, rather than waiting for the I-526E petition to be approved before filing the I-485 application – as was the case before March 2022.

Therefore, it allows the investor and their family members to begin the process of adjusting status and obtaining work permits and travel documents while the I-526E petition is still pending, hence getting access to the benefits and privileges associated with US lawful permanent residency, including the right to live and work in the United States immediately upon filing an EB-5 application.

Previously, investors had to wait for I-526E – which is the petition allowing investors to obtain their conditional green card – approval before applying to change their position. Although the AOS concurrent filing will not speed up the process of obtaining the green card, it does give the investor and dependents immediate access to the benefits of living and working in the US legally without having to wait for the green card. This eliminates anxiety related to any delay in the processing time of the I-526E application and also allows the applicant to make plans in the US and implement those plans right away.

How can F-1 International Students benefit from AOS Concurrent Filling?

The Adjustment of Status (AOS) concurrent filing is an important introduction that has further bolstered the popularity of the EB-5 visa scheme for international students, as it allows applicants already studying in the United States on an F-1 student visa or OPT status, to submit their paperwork for Adjustment of Status concurrently with their EB-5 green card application without ever having to leave the US.

Along with the AOS submission, the applicant can request an Employment Authorization Card and Travel Document (Advance Parole). The student’s status then changes from F-1 or OPT to “pending green card”. Although it does not allow the applicant to achieve the green card faster, within months, the applicant will have the ability to legally live and work in the US without employer sponsorship while they wait for their EB-5 green card application to be processed. Therefore, the applicant can begin taking advantage of many green card benefits even while waiting for the green card application to be processed and approved.

The student will no longer be limited in terms of gaining employment or paid internships with their Employment Authorization Document. An OPT student will also no longer be limited to one employer, time constraints of finding a position, or the type of position being compliant with OPT requirements. The flexibility offered by an employment authorization document is almost the same as the flexibility offered by a green card when it comes to career growth and employment opportunities.

The country of birth must be “current” in the visa bulletin in order for an F-1 or OPT student to take advantage of AOS concurrent filing.

Can H-1B visa holders also benefit from AOS Concurrent Filling?

Filing for Concurrent H-1B Visas

Similar to an F-1 visa holder, H-1B visa holders can also file AOS concurrently with their EB-5 green card application without ever having to leave the US.

This reform has been particularly beneficial for individuals in the tech industry who have faced massive layoffs through 2022 and 2023. Those who had the funds available were able to concurrently file form I-526E for their EB-5 Green Card application and AOS to continue living and working in the US without having to leave the country and disrupt the life they had built in the United States.

In addition, the H-1B holders were no longer restrained by ties to one particular employer or job function as the Employment Authorization document operates like an open work permit.

The country of birth must be “current” in the visa bulletin in order for an F-1 or OPT student to take advantage of AOS concurrent filing.

Why Concurrent Filing Could be a Big Deal in 2024

Concurrent Filing allows the investor and their family members to begin the process of adjusting status and obtaining work permits and travel documents while the I-526E petition is still pending, hence getting access to the benefits and privileges associated with US lawful permanent residency, including the right to live and work in the United States immediately upon filing an EB-5 visa application.

Previously, investors had to wait for I-526E – which is the petition allowing investors to obtain their conditional green card approval, before applying to change their position. Although the AOS concurrent filing will not speed up the process of obtaining the green card, it does give the investor and dependents immediate access to the benefits of living and working in the US legally without having to wait for the green card. This eliminates anxiety related to any delay in the processing time of the I-526E application and also allows the applicant to make plans in the US and implement those plans right away.

Conclusion

Concurrent filing provides an opportunity for EB-5 investors to streamline the process and initiate the adjustment of status while the I-526E petition is pending. However, it is important to understand the eligibility requirements, timing considerations, and potential risks associated with concurrent filings. Seeking the guidance of an experienced immigration attorney who specializes in the EB-5 immigration program is highly recommended to navigate the process successfully.

Leading Immigration Consultancy in Dubai

Immigration Consultancy in Dubai

Step Global is a leading immigration advisory firm headquartered in Dubai, managed by award-winning US lawyer Preeya Malik, with over 13 years of experience in the EB-5 investment visa industry. The Step Global team along with their US legal teams have helped thousands of families in the GCC, Pakistan, India and Africa immigrating to the United States through the EB-5 Immigrant Investor Program. Step Global can also provide guidance on other immigration visas by investment such as the Portugal Golden Visa and the Canada Start-Up Visa.

EB-5 Investor and Dependents FAQs

The EB-5 Immigrant Investor Program requires a refundable investment of USD $800,000 in a government-approved project. The program aims to boost the US economy and thus this investment must create 10 full-time jobs for US citizens. Investment must come from a lawful source.

The conditional Green Card received after a form I-526E is approved allows the investor and family members to live and work in the United States for 2 years on their conditional status, after which they must apply for removal of conditions or a form I-829.

Dependent family members and the investor can be included in one single application thus family members receive the same benefits as the investor which includes living, working, and studying in the United States.

Yes, it is possible to obtain U.S. citizenship through the EB-5 program, but it is not an automatic process. The EB-5 program provides a pathway to lawful permanent residency (green card) initially, and from there, an individual can pursue U.S. citizenship through the investment program and the naturalization process.

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