Unlocking the American Dream: Benefits and Considerations of Concurrent EB-5 Filing

Advantages and Risks of Concurrent Adjustment of Status for EB-5 Investors

last updated Monday, December 16, 2024
#Concurrent EB-5 filing #eb-5 investors

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John Burson

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Key Points:

• Concurrent filing allows EB-5 investors to file Form I-526E & I-485 together, speeding up residency.
• Benefits: Work, travel authorization & quicker green card access.
• Chinese & Indian applicants face retrogression risks; timely filing is crucial.
• TEA investments may offer faster processing & reserved visas.
• Section 245(k) allows AOS filing up to 180 days after status expires.
• Legal advice is vital to navigate risks like I-526E denial & policy changes.

The EB-5 visa program has opened new avenues for foreign investors seeking permanent residency in the United States. Recent changes allow certain non-immigrants who entered the country on valid visas to file for Adjustment of Status (AOS) concurrently with their EB-5 petitions. This opportunity has led to a surge in concurrent filings, offering quicker access to employment and travel benefits. An investment of $800,000 into EB-5 regional centers and approved projects can pave the way for investors and their families to realize their American Dream.

The Opportunity of Concurrent Filing

Concurrent filing permits eligible EB-5 investors in the United States to submit both the EB-5 petition (Form I-526E) and the Adjustment Application (Form I-485) simultaneously. This is possible when visas are available under Chart A (Final Action Date) or Chart B (Date for Filing) of the Visa Bulletin, provided USCIS allows Chart B filings for that month. Over half of all EB-5 investors have embraced this option since the enactment of the Reform and Integrity Act (RIA).

Considerations for Chinese and Indian Applicants

Investors from China and India should be aware of a limited window to file concurrent AOS applications. With other visa categories backlogged, filing now may place applicants behind in line. Still, the benefits of obtaining a five-year renewable combination card for work and travel authorization are significant. The current visa availability for EB-5 reserved visa categories presents a critical opportunity.

Critical Benefits of Concurrent Adjustment of Status

1. Employment Authorization and Advance Parole
   Filing concurrently allows investors to apply for an Employment Authorization Document (EAD) and Advance Parole (AP). These documents enable investors to work, study, open businesses, and travel internationally while their AOS is pending. This flexibility is particularly beneficial for those on nonimmigrant visas such as H-1B, F-1, L-1, O-1, or E-2 who wish to avoid delays associated with consular processing abroad.
2. Section 245(k) Protection
   The EB-5 program now offers Section 245(k) protection, allowing investors to file an AOS up to 180 days after their nonimmigrant status has expired. However, exceeding 180 days out of status or engaging in unauthorized employment can result in denial of the adjustment. It's crucial to wait for the combo card before working or traveling without valid authorization.
3. Targeted Employment Areas and Rural Investments
   Investing in EB-5 projects located within a Targeted Employment Area (TEA) can offer additional advantages. A TEA is defined by specific criteria related to high unemployment or rural areas. EB-5 rural investments and EB-5 rural TEA investments often have reserved visas and potentially faster EB-5 processing times. Consulting the targeted employment area list and understanding the criteria for EB-5 targeted employment areas can help investors make informed decisions.
4. Maintaining Nonimmigrant Intent
   Visa applicants must enter the U.S. with the intent to comply with their visa terms. Students should plan to study, and visitors should have legitimate reasons for their visit. While the law permits a change of intent, it's advisable to wait at least 90 days after entry before filing for AOS to avoid complications during re-entry on Advance Parole.
5. Child Status Protection Act
   Filing Form I-485 for a derivative child can "lock in" the child's age under the Child Status Protection Act, provided the I-526E is approved. For children abroad, including Form I-824 for "following to join," derivatives can extend this protection.

Risks and Challenges

While concurrent filing offers substantial benefits, investors must be aware of potential risks:

1. Denial of I-526E Petition
   If the I-526E petition is denied, the pending AOS will also be denied. Investors typically have 60 days to appeal. I would like to tell you that acting quickly to recover investments and reinvesting in approved EB-5 investment projects is essential.
2. Maintaining Lawful Status
   With a valid underlying status, the process can become simple. An I-526E denial may result in loss of lawful status if the investor is not maintaining a nonimmigrant visa. Working with experienced EB5 Visa Consultants and attorneys is critical to navigating these challenges.
3. Potential Policy Changes
   Upcoming elections may bring policy changes to USCIS. Staying informed and prepared is vital.

Visa Retrogression and Final Action Dates

Investors from China and India should be cautious of visa retrogression. Even if eligible for concurrent filing, their I-526E priority date may not be current upon approval. A Final Action Date imposed before the priority date prevents USCIS from approving the AOS, though EADs and APs can be extended indefinitely while the AOS is pending. Maintaining non-immigrant status, such as H-1B or F-1, until the I-526 is approved is advisable.

Use of Advance Parole and the Cronin Memo

Using Advance Parole to re-enter the U.S. while AOS is pending carries certain risks:

• Impact on Nonimmigrant Status
  Re-entering on Advance Parole means the individual is only in H-1B or L-1 status once an extension is approved. Dependents cannot be admitted in H-4 or L-2 status during this time.
• Section 245(k) Considerations
  Re-entering on a nonimmigrant visa triggers Section 245(k) protection again, permitting up to 180 days of status breaches since the last entry. Entry on Advance Parole does not offer this benefit, as it is not considered an "admission."

Achieving Successful EB-5 Outcomes

The EB-5 process involves complex decisions related to family, immigration, financial, tax, and estate planning. Collaborating with the best immigration lawyers, EB-5 visa consultants, and EB-5 visa attorneys is essential. A well-prepared I-526 petition, careful attention to visa availability, and maintaining valid nonimmigrant status are key strategies for minimizing risks. Reading resources like the EB5 Investors Magazine can provide valuable insights.

Frequently Asked Questions

What is the concurrent filing of EB-5?

Concurrent filing of EB-5 allows investors in the United States on valid nonimmigrant visas to submit their EB-5 petition (Form I-526E) and Adjustment of Status application (Form I-485) simultaneously. This is possible when visas are available for the EB-5 category in the Visa Bulletin. Concurrent filing expedites the process by allowing investors and their families to apply for work and travel authorization without waiting for the approval of the EB-5 petition.

What are the benefits of concurrent filing for EB-5 investors?

Concurrent filing enables EB-5 investors to submit both the EB-5 petition (Form I-526E) and the Adjustment of Status application (Form I-485) simultaneously. This streamlined process allows investors to access employment authorization and advance parole sooner, permitting them to work, study, launch businesses, and travel internationally while their application is pending. Concurrent filing accelerates access to permanent residency benefits, eliminating the need to wait for EB-5 petition approval.

What is the processing time for the concurrent filing of a green card?

The processing time for concurrent filing varies based on USCIS workload, visa availability, and any backlogs for specific categories. Generally, once the concurrent filing is submitted, applicants may receive their combination card for work and travel authorization in about 4–6 months. However, the overall processing time for the green card itself depends on the final approval of the underlying petition and any priority date limitations in the Visa Bulletin.

What is the concurrent filing of Forms I-526E and I-485?

Concurrent filing of Forms I-526E (EB-5 petition) and I-485 (Adjustment of Status) allows eligible EB-5 investors in the U.S. to submit these applications together. This option speeds up access to interim benefits, such as the ability to work, travel, and remain legally in the U.S. during processing. It is available when an EB-5 visa is current based on the Visa Bulletin.

What happens after concurrent filing?

After filing concurrently, applicants may receive an Employment Authorization Document (EAD) and Advance Parole (AP) travel authorization, typically within a few months. These documents allow the applicant to work, travel, and remain in the U.S. while the green card application is processed. USCIS will review both the underlying EB-5 petition and the Adjustment of Status application. If the EB-5 petition is approved and a visa is available, USCIS will process the AOS for final approval.

Conclusion

The ability to file for concurrent Adjustment of Status as an EB-5 investor presents an exciting opportunity to accelerate the path to permanent residency. By investing in EB-5 regional centers and qualifying EB-5 investment projects, particularly in targeted employment areas, investors can access significant benefits for themselves and their families. Partnering with experienced green card attorneys and EB-5 visa lawyers ensures a smooth process. For those ready to embark on this journey, reaching out to a trusted immigration attorney for a free consultation is the first step toward realizing the American Dream.

 
 
 

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