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.

What If My I-526E Petition Remains Unapproved Even After Standard EB-5 Visa Processing Time?

 

 

This article has been presented by EB5 BRICS. About EB5 BRICS

The EB-5 Immigrant Investor Program is a sought-after pathway for foreign investors to obtain U.S. permanent residency by making a qualifying investment in the American economy. A crucial step in this journey is the approval of the I-526E petition, which establishes eligibility for the EB-5 visa. But what happens if your I-526E petition remains unapproved for a very long time? This scenario can be stressful, raising concerns about your investment, immigration plans, and your family’s future. Details –  https://www.eb5brics.com/how-long-is-eb-5-visa-processing-time Understanding why delays occur, what options are available, and how to safeguard your interests is essential for every EB-5 investor.

The Standard I-526E Processing Timeline

Under normal conditions, the I-526E petition is typically processed within 12 to 24 months. However, this timeframe is not guaranteed and can vary significantly depending on several factors, such as:

• The investor’s country of origin

• The complexity of the source-of-funds documentation

• The workload of U.S. Citizenship and Immigration Services (USCIS)

• The specific regional center or project involved

In recent years, some well-prepared cases have seen approvals in under 12 months, while others have experienced much longer waits, especially during periods of high demand or administrative backlog.

Why Do I-526E Petitions Get Delayed?

There are several reasons why your petition might remain unapproved for an extended period:

1. USCIS Backlogs and Workload

USCIS faces fluctuating workloads. Surges in EB-5 demand, changes in immigration policy, or staffing shortages can create significant backlogs, resulting in longer wait times for petition adjudication.

2. Complexity of Source of Funds

If your investment funds come from multiple sources, involve international transfers, or require extensive documentation, USCIS may take longer to verify the legitimacy and compliance of your financial records.

3. Errors or Omissions in the Petition

Incomplete applications, inconsistencies in documentation, or missing evidence can trigger requests for additional evidence (RFEs) or notices of intent to deny (NOIDs), adding months to the process.

4. Country-Specific Factors

Applicants from countries with high demand for EB-5 visas may face additional delays due to per-country visa caps and retrogression.

5. Project-Specific Issues

If the regional center or project you invested in is under review, investigation, or has compliance issues, USCIS may pause adjudication of related petitions until the matter is resolved.

The Risks of Prolonged I-526E Delays

Extended delays in I-526E approval can have several consequences:

• Investment Capital at Risk: Your funds remain tied up in the EB-5 project, potentially for years, with no guarantee of return if the petition is ultimately denied.

• Immigration Uncertainty: Without petition approval, you cannot proceed to the next steps, such as consular processing or adjustment of status, leaving your U.S. residency plans in limbo.

• Family Impact: Delays can affect your spouse and children, particularly if your children risk “aging out” (turning 21 before you receive approval).

• Changing Circumstances: Economic, personal, or policy changes during a long wait can impact your investment or eligibility.

What Can You Do If Your I-526E Petition Is Delayed?

1. Monitor Your Case Status Regularly

Use the USCIS Case Status Online portal to track your petition. Regular monitoring helps you stay informed about any updates, requests, or changes in your case.

2. Engage Your Immigration Attorney

A qualified EB-5 immigration attorney is your best ally. They can:

• Follow up with USCIS on your behalf

• Respond promptly to RFEs or NOIDs

• Advise on strategies to address delays

If you do not have an attorney, consider retaining one, especially if your case is complex or has been pending beyond normal processing times.

3. Submit an Inquiry to USCIS

If your petition has been pending longer than the published average processing time, you or your attorney can submit a case inquiry to USCIS. This may prompt a review or update on your case.

4. Contact Your Congressional Representative

Sometimes, a congressional inquiry can help move a long-pending case. Your attorney can guide you on how to request assistance from your local U.S. Congressional office.

5. File a Writ of Mandamus

As a last resort, you may consider filing a writ of mandamus – a lawsuit in federal court to compel USCIS to decide on your petition. This step is best taken with legal counsel, as it carries risks and may not always result in a favorable outcome.

Best Practices to Prevent and Manage Delays

1. Submit a Complete and Accurate Petition

Ensure all documentation is thorough, accurate, and well-organized. Double-check that all required evidence is included and that information is consistent across all forms and supporting materials.

2. Respond Promptly to Requests for Evidence

If USCIS issues an RFE or NOID, work with your attorney to respond quickly and comprehensively. Delays in responding can further extend your processing time.

3. Choose Projects and Regional Centers Carefully

Invest in projects with a strong track record, transparent operations, and compliance with USCIS requirements. Avoid projects or regional centers with a history of litigation, investigation, or unresolved compliance issues.

4. Stay Informed About Policy Changes

Immigration laws and policies affecting the EB-5 program can change. Stay updated on new developments, especially those that could impact processing times or eligibility criteria.

5. Plan for Contingencies

Consider the possibility of a long wait when making personal, financial, and family plans. Have backup options in place for education, employment, or relocation needs.

The Emotional and Financial Toll of Waiting

Long delays can be emotionally draining and financially challenging. Investors may feel anxious about their future, frustrated by the lack of progress, and concerned about the safety of their investment. It’s important to:

• Maintain open communication with your attorney and project representatives

• Seek support from other EB-5 investors or community groups

• Focus on what you can control, such as documentation and timely responses

What Happens to Your Investment During the Wait?

While your I-526E petition is pending, your investment remains “at risk” in the EB-5 project. The project may be generating returns, creating jobs, or moving forward with development, but you typically cannot withdraw your funds until the required holding period and program conditions are met. It’s essential to:

• Request regular updates from the regional center or project manager

• Monitor project progress and financial performance

• Understand the terms of your investment agreement, including exit strategies and contingencies

What If Your Child Ages Out During the Wait?

One of the most pressing concerns for families is the risk of a child “aging out” – turning 21 before the I-526E is approved. In many cases, the Child Status Protection Act (CSPA) can help preserve a child’s eligibility if the petition was filed before their 21st birthday, but timing is crucial. Consult your attorney for guidance on how to protect your child’s status.

Can You Switch Projects While Waiting?

Generally, once your I-526E is filed, your investment is tied to the specific project listed in your petition. Switching projects or withdrawing your investment before approval can jeopardize your eligibility. If you have serious concerns about your project, consult your attorney to discuss possible options and risks.

Legal Remedies for Excessive Delays

If your petition remains unapproved for an unreasonably long time and other remedies have failed, legal action may be warranted. Filing a writ of mandamus is the primary legal tool to compel USCIS to act, but it should be used judiciously and with expert legal advice. The court will not decide the merits of your case, but can order USCIS to make a decision.

Looking Ahead: The Future of EB-5 Processing

The EB-5 program continues to evolve, with periodic changes to regulations, visa allocations, and processing priorities. Recent years have seen both improvements in processing times for some categories and increased backlogs for others. Staying proactive, informed, and engaged is the best way to navigate extended delays and protect your investment and immigration goals.

Conclusion

If your I-526E petition remains unapproved for a very long time, you are not alone. Delays can be caused by a variety of factors, many outside your control. By understanding the reasons for delays, actively monitoring your case, working closely with an experienced attorney, and being prepared to take action if necessary, you can minimize risks and keep your EB-5 journey on track. Patience, vigilance, and proactive planning are your best allies as you await the next step in your U.S. immigration journey.