Through a process called adjustment of status, eligible EB-5 visa applicants can file for permanent resident or a “Green Card” while remaining in the United States. In many cases, applicants receive a work permit and travel document, long before their final approval.
What Adjustment of Status Means in the EB-5 Context
Adjustment of status is the process by which a foreign national already present in the United States applies to change from a non-immigrant status, including H-1B, L-1, F-1, or E-2, to lawful permanent resident status. In the EB-5 context, this process is initiated by filing Form I-485, Application to Register Permanent Residence. This can occur only if an applicant meets all the requirements under section 245 of the Immigration and Nationality Act.
Before the EB-5 Reform and Integrity Act of 2022 (RIA), investors had to wait for their Form I-526 to be fully approved before they could file the I-485. That wait could stretch for years with no interim benefits. The RIA changed this by introducing concurrent filing, which allows eligible investors to submit Form I-526E and Form I-485 at the same time, provided a visa number is immediately available in their category and country of chargeability.
For investors born in countries without EB-5 backlogs, such as Brazil, concurrent filing is generally available right away. Nationals of oversubscribed countries, including India, are subject to an additional requirement. A visa number must be currently available before the I-485 can be accepted.
Benefits Available During the Pending Period
Filing the I-485 alongside the I-526E unlocks two interim benefits that can affect daily life throughout the waiting period.
- An Employment Authorization Document (EAD), filed on Form I-765, which allows the investor to work for any U.S. employer without employer-specific sponsorship.
- Advance Parole, filed on Form I-131, which authorizes international travel and reentry without abandoning the pending adjustment of status application.
They should be requested for every eligible family member included in the petition. Investors who omit either form may go without those benefits during the pending period, and there is no retroactive remedy. This remains a common oversight in concurrent filings.
How Timing Affects Different Investors
For some investors already living in the United States, an adjustment of status can significantly change how the waiting period works. An E-2 investor in Florida who no longer wants to remain tied to an existing business may be able to file an I-526E together with adjustment-of-status applications for the entire family, including requests for work authorization and travel permission while the case remains pending. In many situations, those interim benefits are available within a few months and allow the family to remain in the United States without depending solely on the underlying nonimmigrant visa. However, this is an important decision and should only be made after seeking advice of legal counsel.
Timing can become even more important as children approach age 21. A properly timed filing may preserve derivative eligibility under the Child Status Protection Act, while delays can permanently close that path for a child aging out during the process.
Investors from countries with visa backlogs such as China or India, face a different challenge. Even after filing an I-526E, visa backlogs may prevent immediate concurrent filing of the I-485 adjustment application. Many continue to maintain H-1B or other employment-based status while monitoring the Visa Bulletin movements and waiting for their priority date to become current. Although the process may still take years, some investors pursue EB-5 because reserved visa categories for qualifying rural projects have moved faster than traditional employment-based backlogs in recent years.
Adjustment of Status vs. Consular Processing
Investors who are not present in the United States, or who prefer to complete the process from abroad, pursue consular processing instead. After the I-526E is approved, they file Form DS-260 at a U.S. consulate in their home country and attend an immigrant visa interview. Upon entry with an immigrant visa, they become conditional permanent residents.
Both paths lead to a two-year conditional Green Card, after which Form I-829 removes the conditions. The main differences usually involve timing, international travel, and whether the investor and family are already living in the United States. Investors with school-age children, active employment, or ongoing medical care in the United States generally find that adjustment of status is the more practical option.
Getting the Analysis Right Before Filing
Adjustment of status is not available to every EB-5 applicant, and concurrent filing eligibility depends on factors that vary by country of birth, current visa status, and the specific EB-5 category being pursued. An experienced immigration attorney can determine which path applies before any forms are filed and identify issues in the source-of-funds documentation that frequently cause delays.
If you have questions about EB-5 adjustment of status or concurrent filing eligibility, contact Mubarak Law at (407) 502-3000 or use the online form on this page to schedule a consultation.
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