The EB-5 Reform and Integrity Act (RIA) of 2022 authorizes certain new investors to file a Form I-485 (Application for Adjustment of Status) along with a Form I-526 (Immigrant Petition by Standalone Investor) or Form I-526E (Immigrant Petition by Regional Center Investor). This is called concurrent filing, and to take advantage of it, there must be a visa available for the applicant, and the applicant must reside in the U.S. in a nonimmigrant status that is eligible for adjustment of status. If a visa is available, it indicates there is space within the annual quota set by the U.S. government for EB-5 immigrant investors to proceed with their visa application process. This is evidenced by the visa category being listed as “Current” in the U.S. Department of State visa bulletin, which displays the availability of immigrant visas each month.
The provision for concurrent filing is advantageous for eligible individuals. By submitting an I-485 application for adjustment of status, investors can seek work authorization and advance parole documents. These documents allow lawful employment and international travel during the pendency of both the I-526 petition and adjustment of status application.
As of January 2024, the set-aside EB-5 categories are classified as “Current” for all countries, meaning an EB-5 investor need not have a particular priority date (the date they filed their application) for a visa to be available to them. Thus, if an investor invests the minimum requirement of $800,000.00 USD in a rural, high unemployment, or infrastructure project, they can move forward with their immigration application process. This is particularly notable for China and India, the only countries whose unreserved EB-5 categories remain uncurrent.
The option to concurrently file is one of the provisions that makes the reformed program more effective and appealing to foreign investors residing in the U.S. on a nonimmigrant visa. It enables applicants to remain in the U.S. and avoid lengthy processing times. For example, it may take USCIS up to 56.5 months to process the I-526 petition and 49 months to process the I-485 petition. However, USCIS often processes the I-485 application shortly after approving the I-526 petition. Nonetheless, it is recommended to maintain nonimmigrant status until a conditional green card is approved.
We encourage Indian and Chinese nationals to take advantage of this provision while the priority dates remain current.