Step 3: Concurrent Filing of I-485 (available ONLY for investors residing in the U.S.)

This option is only available to investors with a pre-existing and current U.S. visa at the time of filing. If you are applying for EB-5 outside of U.S. territory, please refer instead to our guide to consular processing.

EB-5 investors physically present in the U.S. on certain non-immigrant visas may file their form I-485 application for adjustment of status concurrently with their I-526E petition. The adjustment of status changes a foreign national’s non-immigrant status to lawful permanent resident (green card) status. Prior to the enactment of the EB-5 Reform and Integrity Act in March 2022, EB-5 investors could not file their I-485 application until they received their I-526 approval, nor could they avail of any other immigration benefits including work authorization and smooth international travel were not granted to an investor prior to their I-526 approval. Applicants are now able to concurrently file both the I-526E and I-485, which grants them access to the above mentioned benefits even when their I-526E is pending.

Investors hoping to file their I-526E and I-485 concurrently must, however, satisfy another important criterion: their country of chargeability and EB-5 category must be listed as “current” on the Visa Bulletin. If their country of chargeability or EB-5 category does not have the “C” status, they would NOT be eligible for concurrent filing due to the visa backlog because they have no access to available EB-5 visas. Investors born in “oversubscribed” EB-5 countries (such as China, India or Vietnam) should pay particular attention to this requirement, since they are the most at risk for a visa backlog impacting their immigration.

Temporary Work and Travel Authorization

The main benefit of concurrent filing is that applicants can file for work and travel authorization even when adjudications of forms I-526E and I-485 are pending. The two benefits are explained below.

Form I-765 is an application for work authorization meant to provide investors with temporary ability to work before receiving their conditional green card. Approval of form I-765 grants investors with an Employment Authorization Document (EAD) which gives them access to the U.S. job market. Given that the process for I-485 approval can take a long time (see Step 6), the I-765 form provides investors with a means of finding employment and financially sustaining themselves and their families in the meantime.

Form I-131 is an Advance Parole (AP) application which authorizes an investor to receive travel documents, allowing them to leave and enter the country without compromising the I-485 application. With advance parole, an investor waiting for their conditional green card can continue to travel to and from the U.S. as a temporary resident.

These two benefits (work and travel authorizations) may sometimes be combined into one document known as the “combo card.”  Note: Work and travel authorization are both temporary and need to be renewed every two years.

Pre-Existing Visas

When an investor files the I-485 application with the USCIS, their immigration attorney should be consulted to determine how to maintain their underlying nonimmigrant visa and immigrant status. Some nonimmigrant visa holders are eligible to depart the United States without risking their adjustment of status application. For other visa holders, departing the country before receiving their advance parole documents may cause their I-485 application to become “abandoned”. In the event they do leave the U.S., their I-526E status will remain unchanged but their I-485 application will be considered abandoned and will have to be refiled.

Receipts

After filing both forms I-131 and I-765, the investor should have a total of four receipts in their possession (or expect to obtain all four once the I-485, I-131, and I-765 receipts have been processed). Any dependent family members should have three additional receipts in their possession: the I-485, I-131, and I-765. Although the processing times for the I-131 and I-765 may vary, once both forms are approved by the USCIS, investors will often receive both authorization documents through a “combo card”.

While these forms remain pending, investors should receive a request from the USCIS to set up a biometrics appointment for the collection of physical identification data. Additionally, investors residing inside the U.S. are required to file form I-693, an application for a medical exam conducted by a USCIS approved “civil surgeon”.