EB-5 Immigrant Investors and Concurrent Adjustment of Status

The 2022 EB-5 Reform and Integrity Act (RIA) has modified the Immigration and Nationality Act to allow eligible EB-5 investors and their derivative family members to file a Form I-485, Application to Register Permanent Residence or Adjust Status at the same time the EB-5 investor files a Form I-526E, Immigrant Petition by Regional Center Investor, or at any point prior to Form I-526 approval. Before the RIA, EB-5 investors would need to wait for Form I-526 approval before being eligible to file a Form I-485 creating delays of 2-3 years or more. This concurrent filing can only be done if there is a visa available under the State Department The biggest benefit of a Form I-485 adjustment filing is that it allows the applicants to stay in the U.S. legally while waiting for a decision on their I-526 immigrant visa petitions, which has been too slow. When an individual files a Form I-485 adjustment, they can also file a Form I-765, Application for Employment Authorization, and a Form I-131, Application for Advance Parole, for work and travel authorization (called “interim benefits”) during the time in which the Form I-485 is pending. Unless the applicant already has work authorization (such as a person on an L-1 company transfer visa or an H-1B specialty occupation visa), the adjustment applicant may not work in the United States until the Employment Authorization Document is approved. This can take a few months (they had been very slow but we now seeing approvals in about 6 months or less). If the applicant has more than 180 days of unauthorized employment the adjustment application can be denied. Also, if the applicant leaves the United States before obtaining the Advance Parole travel permit, Immigration will consider the adjustment application abandoned and will deny it, and then the case has to be moved to a consular post abroad to finish processing which will cause a delay. The good news is that after the adjustment application is filed and receipted derivative children under 21 should be able to attend public school in the U.S., depending on the school’s policy on whether to accept a foreign student on Form I-485 pending status. Applicants should not enroll students in public schools on visitor visas as that can create a bar to approval. Concurrent adjustment of status was introduced for the first time on EB-5 cases by President Biden’s RIA signed on March 15, 2022, and this is an excellent option for those who are already in the U.S. lawfully. For those outsides of the United States, entering on a temporary visa such as a B-visitor’s visa or F-student visa is complicated due to issues of immigrant intent, which can lead to misrepresentation, or visa fraud finding that creates a permanent bar to immigration benefits. The only dual intent visas are L-1 company transfer and H-1B specialty worker visas. To understand preconceived intent or visa fraud, one must simply realize that if entering as a visitor one must be a visitor and not plan to file for a green card. If, however, there are changed circumstances more than 90 days after entry, the State Department will be open to accepting an explanation of how the applicant came to change their minds. USCIS creates a 60-day presentation but conducts within the 60- or 90-day period that is inconsistent can lead to a visa fraud finding. If for example one entered for a family vacation and to travel and check out schools, for example, that is a permissible visitor intent. If, after arriving they call their lawyer who explains this new option, and based on that call, they change their minds more than 90 days after entry, and only then sever ties with the home country, such as quitting their jobs or selling their home, then there may not be visa fraud. Also, note persons entering under ESTA or visa waivers cannot file an adjustment. They must have a B-visa entry even to be potentially eligible. It’s incredibly important to be clear on the rules because entering on a non-immigrant visa with a plan to file an adjustment after entry, could lead to a lifetime bar. The best way to achieve both short-term and long-term goals is to enter on an L-1 company transfer or H-1B specialty occupation visa, which are “dual intent” visas, but there are separate qualifications for these nonimmigrant visas than for EB-5. If an applicant for an EB-5 concurrent adjustment were to enter on a visitor’s visa or a student visa, they must have a clear plan to enter, visit and go home at the time of entry and must be nonimmigrant. Only with changed circumstances is the filing of a Form I-485 adjustment possible, and it should never be done within 90 days. Be ready for USCIS to question why you changed your mind after entry and filed for a green card. Please note – WR Immigration does not, and cannot, advise a client to enter the United States on a B1/B2 visitor visa and then file I-485 to adjust status to a green card. This is considered visa fraud. WR Immigration would accept a visitor case if the person entered with a plan to return and only after entering learned about this new option and only decided to change their mind at least 90 days after entry. USCIS is slightly more generous at 60 days but notes if an applicant later has to apply for a visa at the Consulate, they are subject to the longer 90-day rule.

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