Can You File for EB5 While on a Non-Immigrant Visa?
This article has been presented by EB5 BRICS, see here
The EB-5 Immigrant Investor Program offers foreign nationals a pathway to U.S. permanent residency through qualifying investments. Learn more: https://www.eb5brics.com/united-states For many individuals already present in the United States on non-immigrant visas, a critical question arises: can they pursue EB-5 permanent residency while maintaining their current temporary status? The answer is definitely yes, and recent legislative changes have made this process significantly more advantageous.
Understanding the EB-5 Program
The EB-5 program, established by Congress in 1990, allows foreign investors to obtain conditional permanent residency by investing at least $800,000 in targeted employment areas or $1,050,000 in non-targeted areas. The investment must create or preserve at least 10 full-time jobs for qualifying U.S. workers. The program provides a pathway to permanent residency for investors, their spouses, and unmarried children under 21.
Legal Framework for Filing While on Non-Immigrant Status
Non-immigrant visa holders can legally file EB-5 petitions while maintaining their temporary status. This is possible because filing an immigrant petition does not immediately violate non-immigrant status, though it does establish immigrant intent. The key distinction lies in the type of non-immigrant visa held and the timing of subsequent applications.
The Immigration and Nationality Act does not prohibit individuals on non-immigrant visas from filing Form I-526 or I-526E (the EB-5 immigrant petition). However, the implications vary depending on the specific visa category and whether the holder has “dual intent” privileges.
Dual Intent vs. Single Intent Visas
Non-immigrant visas fall into two categories regarding immigrant intent:
Dual Intent Visas allow holders to maintain non-immigrant status while pursuing permanent residency simultaneously. These include:
- H-1B (specialty occupation workers)
- L-1 (intracompany transferees)
- E-2 (treaty investors, in practice)
- O-1 (extraordinary ability workers)
Single Intent Visas theoretically require holders to maintain non-immigrant intent, including:
- F-1 (students)
- B-1/B-2 (business/tourist visitors)
- TN (NAFTA professionals)
Despite this distinction, holders of single intent visas can still file EB-5 petitions. The practical consideration is timing and potential impact on future visa applications or status adjustments.
The Revolutionary Change: Concurrent Filing
The EB-5 Reform and Integrity Act of 2022 introduced concurrent filing, fundamentally changing the landscape for EB-5 investors already in the United States. This provision allows eligible individuals to file Form I-485 (Application to Register Permanent Residence or Adjust Status) simultaneously with their EB-5 petition.
Prior to this change, investors had to wait for I-526 approval before applying for adjustment of status, a process that could take several years. The new concurrent filing provision enables immediate benefits for qualifying applicants.
Eligibility Requirements for Concurrent Filing
To qualify for concurrent filing while on a non-immigrant visa, applicants must meet several criteria:
Lawful Status: The applicant must be physically present in the United States and maintain lawful non-immigrant status. This excludes individuals who entered under the Visa Waiver Program, as VWP entries cannot adjust status except in very limited circumstances.
Visa Availability: An immigrant visa number must be immediately available according to the State Department’s Visa Bulletin. Currently, most EB-5 categories remain current for all countries, though this can change monthly.
Priority Date Current: The applicant’s priority date (typically the date USCIS receives the I-526 petition) must be current according to the final action dates chart.
Strategic Considerations for Different Visa Categories
H-1B Holders: These individuals benefit significantly from concurrent filing, as they can escape the limitations of employer-specific authorization. Once the I-485 is filed, they can obtain employment authorization documents allowing unrestricted work.
F-1 Students: Student visa holders can file concurrently, but should consider the 90-day rule for single intent visas. Immigration attorneys often recommend waiting 90 days after entry before filing the I-485 to avoid potential issues with immigrant intent.
E-2 Treaty Investors: These individuals are in an ideal position for EB-5 filing, as they already have investment experience in the United States, and dual intent is generally accepted.
B-1/B-2 Visitors: While technically possible, filing for EB-5 on visitor status requires extreme caution regarding immigrant intent and the 90-day rule.
Benefits of Concurrent Filing
The advantages of concurrent filing for non-immigrant visa holders are substantial:
Immediate Work Authorization: Applicants can file Form I-765 (Application for Employment Authorization) with their I-485, typically receiving employment authorization documents within 3-6 months. This EAD provides unrestricted work authorization, eliminating employer dependencies.
Travel Freedom: Form I-131 (Application for Travel Document) can be filed concurrently, providing advance parole for international travel. This eliminates concerns about visa expiration while abroad.
Educational Benefits: Students are no longer subject to international student restrictions and may qualify for in-state tuition rates after establishing residency.
Status Protection: Once I-485 is filed, the applicant’s status becomes “pending adjustment,” providing legal presence even if the underlying non-immigrant visa expires.
Child Status Protection: Filing I-485 for derivative children helps protect their status under the Child Status Protection Act, potentially preventing aging out.
Processing Timeline Considerations
The concurrent filing process involves multiple timelines:
I-526E Processing: Currently taking approximately 71 months for non-rural projects, though priority processing is available for rural investments.
I-485 Benefits: Work and travel authorization typically issued within 3-6 months of filing, providing immediate relief while the underlying petition is processed.
Conditional Green Card: Upon I-526E approval and I-485 adjudication, applicants receive conditional permanent residency valid for two years.
Permanent Residency: Form I-829 must be filed within 90 days of the second anniversary to remove conditions and obtain permanent residency.
Potential Risks and Mitigation Strategies
While concurrent filing offers significant advantages, several risks require careful consideration:
Petition Denial Risk: If the I-526E petition is denied, the pending I-485 will also be denied. However, USCIS typically provides 60 days to file an appeal, and status protection continues during this period.
Visa Retrogression: Changes in visa availability could affect future filings or create backlogs, though current filers remain protected.
Travel Considerations: Until advance parole is received, international travel could jeopardize the pending adjustment application.
Documentation Requirements
Concurrent filing requires comprehensive documentation for both petitions:
For I-526E: Business plan, source of funds documentation, investment evidence, job creation projections, and regional center materials (if applicable).
For I-485: Medical examination, tax returns, background checks, supporting civil documents, and evidence of lawful status.
Supporting Applications: I-765 and I-131 applications with appropriate supporting evidence and filing fees.
Regional Center vs. Direct Investment Considerations
The choice between regional center and direct investment affects concurrent filing strategies:
Regional Center Projects: Currently benefit from set-aside visa categories that may provide better visa availability for retrogressed countries. The RIA created specific quotas for rural, high unemployment, and infrastructure projects.
Direct Investments: Were immediately available after the RIA’s passage, providing early concurrent filing opportunities before regional centers received redesignation.
Country-Specific Implications
Visa availability varies by country of birth, affecting concurrent filing eligibility:
China and India: Currently benefit from set-aside categories but may face future retrogression as more investors file. The window for concurrent filing may be limited.
Other Countries: Generally remain current across all EB-5 categories, providing more flexibility in investment choice and timing.
Professional Guidance Considerations
The complexity of concurrent filing while maintaining non-immigrant status requires expert guidance. Key considerations include:
Timing Strategy: Determining optimal filing timing based on current status, visa expiration dates, and family considerations.
Documentation Preparation: Ensuring comprehensive preparation of both immigrant and adjustment applications to avoid delays or denials.
Status Maintenance: Managing the transition from non-immigrant to pending adjustment status while maintaining compliance.
Future Outlook
The EB-5 program continues evolving with regulatory changes and congressional oversight. Current concurrent filing benefits represent a significant improvement over historical processes, but applicants should remain aware of potential program modifications.
The set-aside visa categories introduced by the RIA provide additional opportunities for investors from retrogressed countries, though sustained demand may eventually create backlogs even in these categories.
Conclusion
Filing for EB-5 while on a non-immigrant visa is not only legally permissible but has become significantly more advantageous with the introduction of concurrent filing. Non-immigrant visa holders can pursue permanent residency through the EB-5 program while maintaining legal status and obtaining immediate work and travel authorization.
The key to success lies in understanding the specific requirements and implications for different visa categories, ensuring proper documentation, and timing the application strategically. With proper planning and professional guidance, non-immigrant visa holders can effectively navigate the EB-5 process while maximizing the benefits of concurrent filing.
The concurrent filing provision represents one of the most significant improvements to the EB-5 program since its inception, providing a practical pathway for the many foreign nationals already present in the United States to pursue permanent residency through investment while maintaining their legal status and obtaining immediate immigration benefits.