The U.S. Citizenship and Immigration Service (USCIS) has finally allowed for EB-5 investors to utilize concurrent filing to file a Form I-485 Adjustment of Status (AOS) application when the I-526E form is filed. In the past, the EB-5 investor was required to wait until the I-526E form was approved before an AOS application may be filed, which, due to processing times, could take years.
Who May Concurrently File?
Concurrent filing of the two applications may only occur if the EB-5 investor and any dependent family members are in the United States. In addition, all individuals filing an AOS application must be in the U.S. in a lawful status, which means that they may not be in the U.S. on visa waiver, because an individual in the U.S. under visa waiver is not in a visa status, and thus may not “adjust” to being a lawful permanent resident (green card holder). Another item to note is that while the AOS application commonly refers to Form I-485, travel and work authorization documents are separate forms that are filed with Form I-485. While it is not required that they all be filed together, they most often are done so for faster adjudication, and because there is no additional cost to file Forms I-131 (Advance Parole/Travel Authorization) and I-765 (Employment Authorization Document- EAD).
If you and your eligible family members are in the U.S. in H or L statuses, which is considered as “dual intent,” meaning that one holding this status may have the intent of seeking lawful permanent resident status, then an AOS application may be filed immediately with the I-526E. If you are in any other status but H or L, you are likely in a “nonimmigrant intent” status, which means that your intent should be to leave the U.S. at the conclusion of your stay and that you do not intend to seek lawful permanent residence status. For individuals in a nonimmigrant intent status (i.e., B, F, TN), it is recommended by most immigration attorneys that you wait 90 days prior to filing the AOS application(s).
How Does My Status Affect Me After Filing?
After filing your AOS application, you are considered an “Applicant for Adjustment,” and are now lawfully able to remain in the United States. Depending on the status that you “adjusted” from, you may be able to continue your activities. Those in H and L statuses will have the most freedom, because these individuals will be able to continue working (so long as they are in valid H and L statuses and have the proper work authorization pursuant to those statuses) and traveling in and out of the U.S. (with valid visas).
Those who are in a nonimmigrant intent status will be able to continue their activities for the duration that remains, until work and travel authorization are received, which will be explained in the next section. For example, a student in F-1 status will be able to continue their studies, but once the F-1 studies conclude, the student may not be able to work unless they obtain OPT; if this is not obtained, then while the student is able to remain in the U.S., they will not be able to study, travel, or work until authorization is received. Another example is a person in TN status- once the status is expired, the person will not be able to renew their status, and while they may be able to remain in the U.S. lawfully, they will not be able to work or travel until authorization is received. If a person in a nonimmigrant intent status travels before their AP is approved, then they would have been considered to have “abandoned” their AOS application and will thus need to refile (will need to wait the 90 days again upon reentering the U.S.).
What Benefits Do I Receive After Filing?
After filing the I-526E and the AOS applications, the EB-5 investor and eligible family members should expect to receive receipt notices. The receipt notices will be separate for each form filed: I-526E, I-485, I-131, I-765. In addition, biometrics notices will be issued for the AOS application, which the applicant must attend for the application to be adjudicated. If the applicant cannot attend, they may reschedule, but doing so may delay approval. Approvals for both work and travel authorization can be as little as 3 months, to more than 1.5 years—even though USCIS does post processing times on their website, please remember that these are merely averages of adjudication times. Note that when viewing processing times- you are choosing the service center that appears on your receipt notice: https://egov.uscis.gov/processing-times/.
After Forms I-765 and I-131 are approved, approval notices and EAD cards (with travel authorization), or EAD cards and separate Advance Parole document, will be issued. The important thing to note here is that the approval notices themselves do not allow for work or travel authorization, and that the actual document in hand must be present for work and travel back to the U.S. Of course, domestic travel is fine without travel permission. Please do note the expiration dates of these documents; if they need to be renewed, it is recommended by immigration attorneys to do so as soon as possible; note that while EAD extensions (if filed timely), are afforded an automatic extension of work, this does not apply to travel authorization.
Will Concurrently Filing “Lock In” My Green Card?
The visa bulletin is a complicated tool the Department of State uses to calculate the number of visas given in a certain year given demand. By filing the I-526E petition, the date of receipt will establish the “Priority Date” of the EB-5 petition, or the immigrant visa petition, which can be found on the I-526E receipt notice. The priority date “locks in” the place in line for green card processing upon approval.
Concurrently filing an AOS application means that an individual has the right to stay in the U.S. as an applicant for adjustment and may be able to work and travel internationally. It does not, however, “lock in” a spot in the case a priority date retrogresses. If the AOS application is not approved before retrogression, then the applicant will need to wait for their priority date to be current for their AOS application to resume processing. This applies not only to the EB-5 investor petitions, but to all immigrant visa petitions across the board.
The above article is intended for informational purposes only and is not based upon any specific set of facts. Anyone with specific questions or issues concerning EB-5 or H1-B should consult an immigration attorney.
