EB5 Concurrent Filing: What EB5 Investors Need to Know

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EB-5 concurrent filing allows investors already in the U.S. to submit their Form I-526E (EB-5 petition) and Form I-485 (adjustment of status application) simultaneously, accelerating access to green card benefits like work authorization and travel permits while awaiting final approval.

Introduced by the EB-5 Reform and Integrity Act of 2022, this process eliminates the previous requirement to wait for I-526E approval before applying for a green card. 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. 

What is EB-5 Concurrent Filing?

Historically, EB-5 investors had to endure a lengthy, two-step process: first, await the approval of their I-526E (Immigrant Petition by Regional Center Investor) or I-526 (for standalone investors) petition, and only then could they file for Adjustment of Status (Form I-485) to obtain their Green Card if they were already in the U.S. This often meant years of waiting in limbo.

EB-5 concurrent filing changes this dynamic entirely. It permits qualified applicants who are already present in the U.S. on a valid nonimmigrant visa to submit their I-526E/I-526 petition and their I-485 application simultaneously. This single-step submission streamlines the entire process, drastically reducing the overall waiting period.

EB5 Concurrent Filing: An Opportunity Not to Be Missed

EB5 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.  Concurrent filing speeds up the EB-5 green card process by allowing eligible investors to submit both their EB-5 petition (Form I-526E) and their adjustment of status application (Form I-485) at the same time, rather than waiting for the petition to be approved before beginning the green card application process.

Eligibility Requirements for EB5 Concurrent Filing:

• Applicants must reside in the U.S. on valid nonimmigrant visas (e.g., H-1B, F-1, L-1).
• The investor’s country of birth must have an available EB-5 visa (no retrogression). China and India currently face backlogs, making their nationals ineligible unless visas become available.

Features of EB5 Concurrent Filing

Expedited Processing

The most compelling benefit of concurrent filing is the potential for a significantly shorter overall immigration timeline. By submitting both petitions at once, you can avoid the sequential processing that often leads to prolonged waits.

A Direct Path to Permanent Residency

Concurrent filing isn't just about speed; it's about certainty. This process offers a direct route to obtaining a Green Card for you, your spouse, and your unmarried children under 21, granting you permanent residency in the United States.

Meeting the Job Creation Mandate

At the heart of the EB-5 program is its economic impact. As an applicant, your investment must demonstrably create or preserve at least 10 full-time jobs for qualifying U.S. workers. Concurrent filing doesn't change this fundamental requirement, ensuring your investment contributes to the American economy.

Flexible Investment Avenues

The EB-5 program offers choices. You can opt to invest in a new commercial enterprise that you directly manage, or you can choose a USCIS-approved regional center project. Concurrent filing is applicable regardless of your chosen investment strategy, providing flexibility to align with your financial goals.

Significant Reduction in Wait Times

Historically, the EB-5 process involved considerable waiting periods between petition approvals. Concurrent filing aims to alleviate these delays, potentially allowing you to move forward with your immigration journey much faster.

Comprehensive Family Inclusion

The EB-5 program is designed with families in mind. Concurrent filing extends its benefits to your immediate family members – your spouse and any children under the age of 21 – allowing them to be included in your application for permanent residency.

Acknowledging "Dual Intent"

For many foreign nationals, the desire for permanent residency coexists with their current non-immigrant status. Concurrent filing acknowledges this "dual intent," meaning you can pursue your Green Card application without necessarily jeopardizing your existing non-immigrant visa status.

The Process of EB-5 Concurrent Filing

While the concept is straightforward, the execution requires meticulous attention to detail. Here's a simplified overview of the steps involved:

1. Eligibility Check:
   • You must be physically present in the U.S. on a valid nonimmigrant visa.
   • An EB-5 visa number must be "immediately available" for your country of chargeability, as indicated by the monthly Visa Bulletin.
   • You must not have any bars to the adjustment of status.
2. Investment & Documentation:
   • Make the required EB-5 investment ($800,000 for Targeted Employment Areas/Rural Areas, $1,050,000 for others).
   • Prepare comprehensive "Source of Funds" documentation, proving the lawful origin of your investment capital.
   • Gather all necessary project documents (for regional center investments, this includes the business plan and economic impact report demonstrating job creation).
3. Simultaneous Filing:
   • Submit Form I-526E (or I-526) – your EB-5 immigrant petition.
   • Submit Form I-485 – your application for adjustment of status.
   • (Highly recommended) Include Forms I-765 (EAD) and I-131 (Advance Parole).
4. Biometrics Appointment: Attend a scheduled biometrics appointment for background checks.
5. Potential Interview: While not always required, USCIS may schedule an interview to review your case.
6. Conditional Green Card: Upon approval of both petitions and visa availability, you and your family will receive a conditional Green Card valid for two years.
7. Removal of Conditions (I-829): Within 90 days before your conditional Green Card expires, file Form I-829 to prove your investment was maintained and jobs were created, leading to an unconditional, 10-year Green Card.

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.

Benefits of EB-5 Concurrent Filing

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 the 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.

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 want 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

Q: How does concurrent filing speed up my EB-5 Green Card process?

A: EB-5 concurrent filing significantly speeds up your Green Card process by allowing you to submit your I-526E/I-526 petition and your I-485 Adjustment of Status application at the same time. Previously, you had to wait for I-526E/I-526 approval before filing the I-485, which could add years to the overall timeline. By filing concurrently, both petitions can be processed in parallel, cutting down on the total wait time for your conditional Green Card.

Q: How much time can I save with concurrent filing for my Green Card?

A: The time saved can be substantial. Before concurrent filing, investors would often wait several years for their I-526E/I-526 to be approved before they could even apply for Adjustment of Status. With EB-5 concurrent filing, you can bypass this initial waiting period entirely. While overall processing times still vary based on USCIS workload and visa availability, the ability to immediately apply for an EAD and Advance Parole can provide work and travel authorization within a few months, significantly reducing the "waiting in limbo" period.

Q: Can I work and travel in the U.S. while my EB-5 is pending through concurrent filing?

A: Yes, absolutely! This is one of the most compelling benefits of EB-5 concurrent filing. When you file your I-485 concurrently, you can also submit applications for an Employment Authorization Document (EAD - Form I-765) and an Advance Parole (AP - Form I-131). Once approved, these documents allow you to legally work for any employer in the U.S. and travel internationally without abandoning your pending Adjustment of Status application, providing invaluable flexibility.

Q: What happens if my visa retrogresses after I file concurrently?

A: If your visa retrogresses after you have successfully filed concurrently (meaning your priority date was current at the time of filing), you are generally protected. Your I-485 application will remain pending until your priority date becomes current again. Crucially, if you received your EAD and Advance Parole prior to the retrogression, you can usually continue to use these documents for work and travel while your I-485 remains pending. However, if retrogression occurs before you can file concurrently, you would have to wait for your priority date to become current before you are eligible to file the I-485.

Q: Does concurrent filing apply to all EB-5 investors or only specific cases?

A: EB-5 concurrent filing applies to eligible EB-5 investors who are already physically present in the U.S. on a valid nonimmigrant visa and whose EB-5 visa category (and country of chargeability) has an immediately available visa number according to the monthly Visa Bulletin. It does not apply to investors who are outside the U.S. at the time of filing; they must go through consular processing after their I-526E/I-526 is approved.

Q: How does concurrent filing impact the overall success rate of obtaining a Green Card?

A: EB-5 concurrent filing itself does not directly impact the fundamental success rate of your EB-5 Green Card approval, which primarily depends on the strength of your I-526E/I-526 petition (proving lawful source of funds and job creation) and your eligibility for adjustment of status. However, it can indirectly contribute to success by allowing you to remain in the U.S. and actively address any Requests for Evidence (RFEs) or other issues that may arise during processing, often with the support of your legal counsel. The overall success rate for I-526E petitions has been very high (e.g., 98% in FY2024 for some projects), largely due to well-prepared applications and reliable projects.

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.