Concurrent filing for adjustment of status is now here!
I am pleased to announce that USCIS is accepting concurrent filing of I-485 applications for adjustment of status by EB-5 investors whose I-526 petition is still pending.
Just to review, after the I-526 petition is approved, EB-5 investors and their family members still have to go through the process of applying to begin the period of conditional permanent residence, whether they do so by applying for an immigrant visa through the consulate or embassy where they live abroad, or they apply for adjustment of status from a non-immigrant, temporary visa status in the U.S.
Before the EB-5 Reform & Integrity Act of 2022 became law on March 15, 2022, it was necessary for the I-526 petition to be approved before proceeding with applying for adjustment of status or for consular processing of an immigrant visa. The EB-5 Reform & Integrity Act of 2022 provided for allowing EB-5 investors to apply for adjustment of status if those EB-5 investors are present in the U.S. in a non-immigrant visa status that is not specifically barred from applying for adjustment of status. There are some non-immigrant statuses that are barred from applying for adjustment of status such as visitors under the ESTA-Visa Waiver Program or crew members of ships or aircraft under a C-1D crew member visa. However, most other non-immigrant statuses are eligible to apply for adjustment of status.
The benefits of applying for adjustment of status are that the EB-5 investor and dependent family members can live in the U.S. while they await the decision on the I-526 petition and, if the I-526 petition is approved, USCIS can then proceed to approve conditional permanent residence. Concurrent filing for adjustment of status while the I-526 petition is pending has the double benefit of:
- enabling the EB-5 investor and dependents to live in the U.S., with work authorization a travel document for international travel, while the I-526 petition is pending; and
- getting a head-start on the follow-on process of obtaining approval of the conditional permanent residence, since, upon approval of the I-526 petition, it would be necessary, anyway, to go through the adjustment of status process or the consular processing of an immigrant visa in order to reach the point of having conditional permanent residence.
Existing EB-5 investors with pending I-526 petitions who are already in the U.S. in valid non-immigrant visa status and existing EB-5 investors who are outside of the U.S., but can enter the U.S., together with any family members, who also have valid non-immigrant visas, can take advantage of this new opportunity. Existing EB-5 investors with a pending I-526 petition, who do not already have a valid non-immigrant visa, will most likely have a difficult time to obtain a non-immigrant visa when they have an I-526 petition already pending, since they have to disclose on the DS-160 application form, the application form for all non-immigrant visas, any previously filed immigrant petition, including the I-526 petition, and the consular officer would then likely deny the visa due to concluding that the EB-5 investor has immigrant intent, which is more than sufficient grounds for denial for most visas except, for instance, H-1B and L-1 visas, which allow for immigrant intent.
Future EB-5 investors, who would like to take advantage of concurrent filing of the I-485 adjustment of status application, should plan ahead to obtain a non-immigrant visa before filing the I-526 petition for the reasons stated above about immigrant intent. From today’s perspective, it looks like that months will pass before it will be possible to file a new I-526 petition, since the EB-5 Reform & Integrity Act of 2022 requires that regional centers go back through the process of being redesignated as a regional center and USCIS is not going about this in a way that would streamline or simplify the process. Therefore, we anticipate that this will drag on for months. This gives new prospective EB-5 investors time to find a solution for coming to the U.S. under a non-immigrant visa prior to filing the I-526 petition.
There was no big announcement by USCIS that they are now accepting I-485 applications for adjustment of status by EB-5 investors with pending I-526 petitions, but rather different immigration attorneys just took a chance and filed I-485 applications, arguing that it should be possible under the new law, and USCIS accepted the applications for processing. In fact, the only indication on USCIS’s website that concurrent filing is possible is in the instructions on where to the file the I-485 application. There it presents the scenario of filing the I-485 application based on “A pending or approved, Form I-526, Immigrant Petition by Alien Entrepreneur. You must include a copy of the Form I-797C, Notice of Approval, showing we accepted or approved your Form I-526.)” These instructions came only later, after attorneys had filed I-485 applications for their clients with pending I-526 petitions. Also, it took the U.S. State Department, which tracks the availability of green cards under the various quotas, over a month before they made the determination that green cards became immediately available to EB-5 investors who already had approved I-526 petitions, and now for those who have pending I-526 petitions. The bottom line for EB-5 investors, is that it’s better late than never, and so those who are in a position to take advantage of concurrent filing of the I-485 adjustment of status should do so, since the processing times of I-526 petitions will continue to be long for some time. Pursuant to Congress’ demands that USCIS speed up its processing times for I-526 and I-829 petitions, USCIS has commissioned a study to evaluate how it can speed up its processing times, and the time frame for completing that study alone is a year. Therefore, no relief from USCIS’s long processing times is coming soon.