Concurrent Adjustment Of Status For EB-5 Applicants

Concurrent adjustment of status has become an increasingly important strategy for EB-5 investors already in the United States. By allowing eligible applicants to file for adjustment of status at the same time as their EB-5 petition, this approach can streamline the path to conditional permanent residence and provide added flexibility during the process. However, eligibility, timing, and immigration status considerations are critical to understand before pursuing this option.

What is concurrent adjustment of status?

Obtaining conditional residence status through EB-5 is normally a two-step process. The first step is the filing of the I-526E EB-5 petition. The next step is filing for a conditional immigrant visa at a US consulate. In certain circumstances where the applicant is in the U.S. at the time of filing the I-526E petition, it may be possible to file an application for adjustment of status to conditional permanent resident together with the I-526E petition rather than leaving the country to attend an immigrant visa interview. Any qualifying derivatives in the U.S. are also eligible to file an adjustment of status with the EB-5 investor.

What are the advantages of concurrent adjustment of status?

First, for applicants in the U.S. with a valid nonimmigrant status, it enables them to complete the conditional permanent residence process without leaving the country. In most cases, concurrent adjustment of status results in obtaining conditional permanent residence much quicker than consular immigrant visa processing. Upon filing the adjustment of status application, the applicant is generally able to remain in the United States while awaiting a decision in a “status authorized by the Attorney General.”

Is it best for the applicant to maintain a nonimmigrant status while a concurrent adjustment of status application is pending?

In most cases, yes. If the applicant does not maintain a valid nonimmigrant status, and the EB-5 petition or the application for adjustment of status is denied, the applicant will have no legal status in the U.S.

Is an applicant eligible to work while the concurrent adjustment of status is pending?

At the same time as the I-485 adjustment of status application is filed, the applicant can file a Form I-765 for employment authorization. Upon approval of employment authorization, the applicant can work for any employer without needing sponsorship. Before that approval, any employment is unauthorized unless the applicant continues to maintain a valid working nonimmigrant status, such as H-1B or L-1 visa status.

Can the applicant travel outside of the U.S. while the adjustment of status application is pending?

If the applicant continues to maintain valid H or L nonimmigrant status, the applicant can continue to travel using the H or L visa. Otherwise, the applicant cannot travel until they obtain an advance parole travel document. The timing for obtaining an advance parole travel document is erratic. It is not unusual that the adjudication time will be 6-9 months or more. Travel before the advance parole approval will result in the abandonment of the adjustment of status application.

It is very important that the applicant understands the restrictions on travel before filing the adjustment of status application. This issue comes up frequently for applicants who have been in E-2 nonimmigrant status, who had freedom to travel in and out of the country prior to filing the adjustment of status application.

What is the processing time for the adjustment of status application?

Before the adjustment of status application can be adjudicated, the EB-5 petition must be approved. After approval of the I-526E petition, the timing for approval of the I-485 application varies greatly. It is not unusual for this to take 6-12 months. In addition, the priority date must be current at the time of adjudication of the adjustment of status.

When is concurrent adjustment recommended, and when is it not recommended?

H or L Status

It is generally recommended for applicants in H or L nonimmigrant status in the U.S. The reason is that H and L visas are dual intent visas, meaning that an application for adjustment of status to permanent residence is not inconsistent with entry on the H or L visa. Because of this, these applicants are able to travel during the process without needing advance parole and are able to work for their H-1B or L-1 employer without needing employment authorization. There is no restriction on an H or L nonimmigrant filing for adjustment of status promptly after entry into the U.S.

O or E Nonimmigrant Status

These are not dual intent visas, but these applicants can continue to work in their O or E nonimmigrant status during the pendency of their adjustment of status until their O or E nonimmigrant status expires. It is best that they do not file for adjustment of status promptly after entering the country, although the risk of denial of the I-485 is less than with visitors or students, since they expressly or impliedly stated that they were coming to work in the United States; and they did, in fact, work in the U.S. Applying for adjustment of status is not necessarily inconsistent. However, they cannot travel out of the U.S. until the advance parole is approved.

F-1 Students or J-1 Exchange Visitors

Unlike H, L, E, and O nonimmigrants, they have a requirement to prove that they maintain a residence outside of the United States to which they intend to return after their temporary study, research, or training in the U.S. Applying for adjustment of status might be considered inconsistent with that. It is generally best to wait 90 days or more after arriving to the U.S. before applying for adjustment of status, which will reduce the chance of a denial based on “preconceived intent.” If an applicant has the intention of applying for permanent residence when he enters the U.S. on an F or J visa, it could be the basis for denying adjustment of status. However, denial based on preconceived intent is less likely with F or J nonimmigrants than with B-1 or B-2 visitors because the main purpose for entering the U.S. was to study, do research or training, and presumably they fulfilled their main purpose. Applying for adjustment of status is not necessarily inconsistent.

B-1 Visitors for Business or B-2 Visitors

By far, the riskiest strategy is for B-1 visitors for business or B-2 visitors for pleasure applying for concurrent adjustment of status. Such an application is completely inconsistent with the purpose of a short-term visit to the U.S. A denial of an adjustment of status based on a preconceived intent is very possible.

Many people think that there is a “90-day rule” that prevents a preconceived intent denial if the applicant waits at least 90 days after entering the U.S. and before applying for concurrent adjustment of status. There is no such rule. However, as a matter of policy, USCIS may be less likely to raise a preconceived intent issue if the applicant has waited at least 90 days.

However, just waiting 90 days is not always sufficient. The applicant should be prepared to prove, including by documentation, that they did not intend to apply for permanent residence when they entered the U.S. in B status. Specifically, what happened in the 90 days since their arrival that made them change their mind from intending to return to their home country to deciding to stay permanently in the U.S.?

If the applicant is intending to pursue this strategy, they should keep a couple of things at the front of their minds. First, if they took certain actions prior to leaving their home country – such as terminating employment, dropping out of school, or selling a house – it is likely to be very difficult to prove that the applicant did not preconceive the intent to stay permanently in the U.S.

It is also critical to understand that during the 90 (or more) days prior to filing the adjustment of status application, the applicant should not have taken any action consistent with staying permanently in the U.S. or consistent with filing an EB-5 application. For example, they should not during that interim period invest in an EB-5 project, transfer money for an EB-5 investment, etc.

It is important to recognize that an adjustment of status is a discretionary application. This means that USCIS could deny the application in its discretion even if the applicant waits 90 days or more.

Is a denial of adjustment of status for preconceived intent the only possible negative ramification of filing for concurrent adjustment of status?

No. A denial based on preconceived intent does not prevent the applicant from subsequently applying for an immigrant visa based upon the already approved EB-5 petition.

The more severe possible consequence is if USCIS takes the position that the applicant committed fraud or made misrepresentations in obtaining a visitor visa or in obtaining entry at a U.S. port of entry. A finding of fraud or misrepresentation could result in a permanent bar from returning to the U.S.

How does an EB-5 quota backlog impact concurrent adjustment of status?

An application for adjustment of status can only be filed if the priority date for the EB-5 petition is current for the applicant. This is not an issue at the time of the writing of these FAQs since there are presently no EB-5 quota backlogs for EB-5 reserved visas in high unemployment or rural areas or infrastructure projects. If and when quota backlogs develop, concurrent adjustment will no longer be available.

Is the age of a child frozen upon the filing of a concurrent adjustment of status?

Yes, pursuant to the Child Status Protection Act, the age of a child under 21 remains frozen upon the filing of the I-485 application. There is some controversy and difference of opinion whether a child’s age remains frozen if there is a subsequent quota retrogression after the filing of the I-485 application.

If concurrent I-526E and I-485 applications are filed, and the I-526E is denied, what happens to the I-485 application?

It is very likely that the I-485 application will be denied shortly after the I-526E application is denied. This will result in loss of employment authorization and travel documents.

Does the filing of a Motion to Reopen or Reconsider or an appeal to the AAO prevent USCIS from denying the I-485 application?

USCIS’ position is that they can and often will deny the I-485 application despite the pendency of a motion or an appeal.

If the I-526E petition is denied and another EB-5 or other immigrant petition is filed, can it be connected to the original I-485 petition?

USCIS’ position is that, once the underlying EB-5 petition is denied, no new petition can be interfiled and connected to the I-485 application. However, if another EB-5 petition or other immigrant petition is filed before the I-526E is denied, it may be possible to connect the new petition to the original I-485 application. In this instance, the applicant will be able to remain in the United States with employment authorization and travel document, despite the denial of the original EB-5 petition.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.