Let’s say you are in the United States and have just completed a new EB-5 investment. You have filed your I-526 or I-526E petition and an application for adjustment of status (AOS) concurrently with USCIS. While waiting for these applications to be adjudicated, life continues, and inevitably you need to travel internationally—to visit family, for work, or for leisure. This article addresses the requirements and potential issues for EB-5 investors traveling with a pending AOS application.
The ability of EB-5 investors to file an AOS application concurrently with their EB-5 petition is one of the most significant procedural changes brought forth by the 2022 Reform and Integrity Act to the EB-5 program. Concurrent filing gives EB-5 investors the opportunity to apply for and receive ancillary travel and work benefits—an advance parole (AP) to travel internationally and an employment authorization document (EAD) to work—while the EB-5 and AOS applications remain pending.
The ability to work and travel internationally during the pendency of an AOS application greatly benefits EB-5 investors already living, studying, and working in the United States on a non-immigrant visa status, such as H-1B, F-1, E-2, or TN. Previously, EB-5 investors were forced to delay their immigration plans as they waited for years-long adjudication of their I-526 before filing an AOS application, but now they can file an AOS application and continue to work and travel internationally.
In more welcome news, USCIS recently increased the maximum validity period of AOS-based APs and EADs from two to five years, applicable to all initial and renewal applications pending or filed after September 27, 2023. The increased validity period for these documents not only has the potential to address backlogs and improve USCIS’s internal processing times but also significantly reduces the administrative burden for EB-5 investors needing to file extensions.
Depending on the non-immigrant status they hold, an investor with a pending AOS may have temporary travel restrictions or may employ different strategies when traveling internationally. Below, we discuss the impact of traveling with a pending AOS for EB-5 investors holding common non-immigrant visa statuses.
Most non-immigrant visa statuses are “single intent”—generally requiring the visa holder to affirm with every entry to the United States that their visit is temporary, that their activities are consistent with the visa category they hold, and that they have significant ties to their home country that they will not abandon.
Once an EB-5 investor who holds a single-intent visa status applies for AOS, they have declared their intent to immigrate to the United States. Such investors and their dependents must apply for and receive an AP to travel internationally within the validity period of their AP document. If an investor on a single-intent visa status (i.e., not H or L status as discussed further below) departs the United States while their AP application is pending, the USCIS will generally deny the AOS application due to considering it as being abandoned.