How do AOS and Concurrent Filing Benefit EB-5 Investors?
In the EB-5 program, there are two approaches for receiving the green card after being approved: Adjustment of Status or Consular Processing. Suppose an investor is filing from abroad and not living in the U.S. on a valid visa. In this case, they must wait until the green card petition is approved before scheduling an interview at a local consulate or embassy. If an applicant is filing from the U.S., he/she will likely take advantage of the Adjustment of Status approach.
Once the I-526E green card petition is approved, the I-485 Adjustment of Status will be reviewed. Once approved, the applicant’s status is converted to that of a green card.
By filing the Form I-485 for Adjustment of Status (AOS), EB-5 investors in the U.S. can enjoy the unrestricted work and travel benefits of their EB-5 Visa in as little as 2 or 3 months while awaiting the approval of their I-526E petition for a green card.
H1-B visa holders from China and India, who are facing several years of EB-2 and EB-3 visa retrogression, can bypass decades of waiting by investing in a TEA (Rural or High Unemployment) EB-5 Project and concurrently filing an Adjustment of Status.
However, EB-5 investors from China and India should proceed with caution. Although the High Unemployment Area category may appear as “Current” at the moment, our analysis of High Unemployment I-526E Petitions already submitted to USCIS indicates that this category will soon experience retrogression on the Visa Bulletin.
On a positive note, Rural EB-5 investors are unlikely to face retrogression in the immediate future. Eventually, the rural EB-5 category will retrogress as well. However, the wait is not expected to be as drastic as that for the High Unemployment category due to the fact that the Rural category has the highest allocation of set-aside visas in the EB-5 program.
I-485 Application Overview
The filing of Form I-485, officially known as the “Application to Register Permanent Residence or Adjust Status,” allows qualifying EB-5 investors and their family members with legal status in the United States to issue Green Cards and become conditional permanent residents without having to return to their home country for Consular Processing (Form DS-260) to obtain their EB-5 Visas.
Applicants and dependents must be in the U.S. and have a U.S. address to file for Adjustment of Status.
The primary EB-5 applicant, spouse, and unmarried children under 21 included in the I-526E Petition must each file an I-485 Application. The filing fee was increased to $1,440 on April 1, 2024.
The national median I-485 processing time is about 8 months, and it requires approval of I-526E. However, I-485 processing time varies greatly, and some applications may take considerably longer. Concurrent filing lets applicants enjoy unrestricted work and travel benefits much faster.
Once the I-485 is filed, applicants will likely receive the Employment Authorization Document (EAD) and Advanced Parole (A.P.) for Travel Authorization in 3-6 months. This provides EB-5 investors with the opportunity to live, work, and travel freely in the U.S. while awaiting the approval of the I-526E green card petition.
Essential Documents for I-485 Approval
The I-485 petition will not be processed or approved until the I-526E petition for a green card is approved. In order to be approved, the USCIS requires biographical information, proof of eligibility, personal records, passport and immigration documents, criminal history, medical records, and biometrics for the I-485 approval. It is essential to plan with an immigration attorney before filing to ensure you have all the necessary documents and information.
Conditional Permanent Residency and Removing Conditions
Upon meeting all I-485 requirements and receiving immigrant visas from the U.S. Department of State, the applicant and the immediate family will be Conditional Permanent Residents for two years.
To remove these conditions and become permanent Green Card holders, the EB-5 applicant must file the I-829 Petition within the last 90 days of the 2-year period of conditional residency.
What is Concurrent Filing, and how does it benefit EB-5 Investors?
The EB-5 Reform and Integrity Act of 2022 (RIA) has introduced substantial reforms and investor protections to the program, including EB-5 concurrent filing.
This new provision allows EB-5 investors with a legal presence in the U.S. to file the Form I-485 (Application for Permanent Residence or Adjustment of Status) at the same time as the Form I-526E (Regional Center Immigrant Investor Petition) or while the I-526E is pending.
They can also file Form I-765 (Application for Employment Authorization) and Form I-131 (Application for Travel Document) through the Adjustment of Status
Concurrent filing enables these EB-5 investors to apply for an adjustment of status alongside their EB-5 petitions rather than waiting for I-526E petition approval. Before the RIA, they had to wait for their I-526E petition to be approved before filing their Form I-485 for Adjustment of Status. This concurrent filing is a significant development for foreign nationals seeking to change paths from their current visa status to that of permanent residency without leaving the U.S.
At Houston EB5, we see a growing number of EB-5 investors receiving their Employment Authorization Document EAD and Advance Parole Travel Permit in as little as three months.
Who is eligible for Concurrent Filing?
EB-5 investors holding “dual intent” visas, which accommodate both immigrant and non-immigrant purposes (such as H-1B or L-1 visas), are permitted to file Form I-485 concurrently with their I-526E petition.
In contrast, holders of visas categorized under “non-immigrant intent” (like B, F, TN, E-2, or O visas) are recommended to consult with their immigration attorney about whether they are eligible to take advantage of a concurrent filing of the Adjustment of Status.
Avoiding Retrogression
We advise EB-5 investors from high-volume countries like China, India, Vietnam, and South Korea to carefully select their project and visa category to avoid visa retrogression. Retrogression occurs when the number of EB-5 Visa applicants from a particular country exceeds the available visas for that country in a fiscal year, leading to a halt in visa issuance and significant delays.
For a detailed explanation of retrogression and how it’s currently impacting EB-5 investors, please read our blog.
Retrogression poses severe challenges and uncertainties for applicants. It can impact their immigration status, financial stability, and overall well-being. Fortunately, investors can mitigate these risks by opting for a reliable project in an EB-5 category offering the highest number of reserved visas.
Objective Information on Rural Areas
Investors looking at rural EB-5 projects can encounter challenges due to scarce rural data, in contrast to the extensive information on urban high unemployment areas or investments.
To aid investors, Houston EB5 has released a White Paper based on in-depth research by HeartlandForward.org, a leading think tank. This paper identifies and evaluates the most dynamic metropolitan areas regarding resilience, economic diversity, growth potential, connectivity, and tourism appeal.
The White Paper filters the database through a qualifying EB-5 lens, focusing on locations suitable for designated rural EB-5 areas. Rural areas for EB-5 qualify as those with populations under 20,000 and outside Metropolitan Statistical Area (MSA) limits. The White Paper then adds another lens to magnify strong markets when filtering for those within a 1.5-hour drive from rapidly expanding large metropolitan areas. This guidance is crucial for investors aiming to minimize risks and maximize returns in rural EB-5 projects.
Approved Rural Project
Houston EB5 is excited to share that our Rural EB-5 project, The Frederick, has received the I-956F Project Approval from the USCIS. This approval ensures that all I-526E Petitions for Conditional Residency linked to The Frederick will be approved, provided that an investor’s Source and Path of Funds are approvable. We have already begun to receive I-526E approvals.
Thanks to the enhanced processing efficiency at USCIS, we now anticipate that processing time for I-526Es related to The Frederick will range between 3-6 months.
We encourage interested investors to contact us promptly to secure a space before they are all taken. With news of the recent approvals, we only have a handful of spaces remaining.
