Concurrent filing for EB-5 investors in the United States

An EB-5 investor ordinarily files an investor petition first: Form I-526 for a standalone (direct) investment or Form I-526E for an investment through a regional center. Once the petition is approved, the investor seeks conditional permanent residence in one of two ways: by adjusting status inside the United States with Form I-485, or by applying for an immigrant visa abroad through consular processing, which starts with Form DS-260.

The EB-5 Reform and Integrity Act of 2022 (opens in a new tab), effective March 15, 2022, changed that sequence for people in the United States. It allows an investor to file Form I-485 together with the investor petition, or while that petition is pending, provided an immigrant visa is immediately available and the other requirements for adjustment are met. This is known as concurrent filing.

Concurrent filing does not change the underlying EB-5 requirements. The investor still needs to make a qualifying at-risk investment from a lawful source, and the conditional residence that follows still lasts 2 years before the investor files Form I-829 to remove conditions. See the EB-5 process for the full sequence.

Concurrent filing is only relevant to someone who can adjust status from inside the country. In general terms, that means a person who is:

• Physically present in the United States when the I-485 is filed.
• In a position to adjust status, which generally depends on how the person entered, whether they have maintained lawful status, and whether any bars to adjustment apply.
• Filing as the EB-5 investor, or as a qualifying derivative family member (a spouse or unmarried child under 21) who is also in the United States.

People commonly considering concurrent filing include students, temporary workers and others already living in the United States in a nonimmigrant status. Family members abroad would generally process through a U.S. consulate instead, even if the investor adjusts status. Questions about a child approaching 21 deserve early attention; see planning for children and age.

Concurrent filing is permitted only when an immigrant visa is immediately available to the applicant. Availability is measured using the monthly Visa Bulletin published by the U.S. Department of State, which compares each applicant's priority date (for EB-5, generally the date the investor petition was filed) against cut-off dates for their category and country of chargeability.

The Visa Bulletin contains two charts for each category: Final Action Dates and Dates for Filing. Each month, USCIS announces which of the two charts applicants must use to determine whether they may file an adjustment application with USCIS that month. That announcement is published on the USCIS adjustment of status filing charts page (opens in a new tab).

1. 01

   Step 1: Identify your category

   Determine whether your investment falls under the unreserved category or a reserved category (rural, high unemployment or infrastructure). Your attorney and the project documents should establish this.

2. 02

   Step 2: Identify your country of chargeability

   This is generally your country of birth, with limited exceptions.

3. 03

   Step 3: Check which chart USCIS is using this month

   Visit the USCIS adjustment of status filing charts page for the current month.

4. 04

   Step 4: Compare your priority date

   Find your category and country on the designated chart in the current Visa Bulletin (opens in a new tab). If the chart shows "C" or a date later than your priority date, a visa is treated as available for filing that month.

Availability can change from month to month. A filing window that is open one month may close the next, and a category that is current today may later retrogress. EB5 Circle does not publish cut-off dates; always check the official sources for the current month.

One reason applicants consider concurrent filing is that a pending I-485 can open the door to certain interim benefits. While the adjustment application is pending, the applicant may generally apply for:

Employment authorization

An Employment Authorization Document (EAD) that, once approved, generally permits work for any employer while it remains valid. It is requested on Form I-765.

Advance parole

A travel document, requested on Form I-131, that allows an adjustment applicant to travel abroad and return without the application generally being treated as abandoned.

These are applications, not automatic grants. Each is decided separately, may carry its own fee (see the USCIS fee schedule (opens in a new tab)), and takes time to process (see USCIS processing times (opens in a new tab)). Travel rules while an I-485 is pending are nuanced and can differ for people holding certain nonimmigrant statuses, so any trip abroad should be discussed with an attorney beforehand.

Students on F-1 status and professionals on H-1B status are among those who most often ask about concurrent filing. The points below are general themes to raise with an attorney, not rules that apply to every case.

Students (F-1)

• F-1 status is generally premised on an intention to return home after study. Filing an I-485 signals an intention to immigrate, which may affect future F-1 visa applications, re-entry or status extensions.
• Relying on an EAD from a pending I-485 rather than on student work options is a significant decision; it can affect whether the student is still maintaining F-1 status.
• Families funding a student's investment should also consider source-of-funds documentation for gifted funds. See EB-5 for students.

Professionals (H-1B)

• H-1B status generally permits an intention to immigrate, which can make concurrent filing simpler to combine with continued employment.
• Some professionals choose to keep maintaining H-1B status while the I-485 is pending, as a fallback if the EB-5 case runs into problems. Whether that is wise depends on the employer, the job and the individual's plans.
• Changing jobs or relying on an EAD instead of H-1B status can have consequences that should be weighed in advance. See EB-5 for professionals.

Concurrent filing can be valuable, but it carries risks that are easy to overlook:

• Petition denial. The adjustment application depends on the investor petition. If the I-526 or I-526E is denied, the I-485 generally cannot be approved, and any interim benefits tied to it may end.
• Loss of fallback status. An applicant who stopped maintaining a nonimmigrant status in reliance on the pending I-485 may be left without lawful status if the case is denied.
• Travel missteps. Leaving the United States without appropriate authorization while an I-485 is pending may cause the application to be treated as abandoned.
• Changing availability. Visa availability can retrogress after filing. A pending application may then wait longer for a final decision, even though it was properly filed.
• Investment risk. The immigration outcome depends in part on the project. An EB-5 investment is at risk and may lose value; see understanding EB-5 investment risk.
• Cost. Filing the I-485 and related applications early means paying additional government fees and professional costs before the investor petition is decided.

The table summarises general differences. Individual outcomes vary.

If you are in the United States and considering EB-5, it may help to gather your immigration history (entries, statuses held and any extensions or changes) before speaking with a professional.

• Learn how to read the Visa Bulletin for your category and country.
• Review the overall EB-5 process and requirements.
• Read the audience guides for students, professionals and families.
• When you are ready, you can request a consultation to be connected with an appropriate qualified professional.

A qualified U.S. immigration attorney should confirm eligibility, timing and status strategy before any filing.