Filing for an EB-5 investor visa is a transparent and straightforward process, which does not require employer sponsorship or tests for language or labor certification.
However, due to backlogs after the COVID-19 pandemic, the process has become much more drawn out. The adjudication time for approval of Form I-526, the initial petition that leads to a conditional green card, has nearly quadrupled to take four years for some investors. USCIS is taking measures to shorten the wait time, such as hiring new officers in the Immigrant Investor Program Office, but still has a long way to catch up.
Fortunately, a provision of the EB-5 Reform and Integrity Act of 2022 allows EB-5 applicants to file for a “concurrent adjustment of status,” which will likely speed up the EB-5 application process.
Let’s discuss what exactly this provision means, who can apply for it, and how it will affect their EB-5 application.
What is concurrent adjustment of status?
Concurrent adjustment of status allows holders of valid U.S. immigrant or non-immigrant visas who are applying for an EB-5 investor visa to adjust their existing immigration status even before USCIS adjudicates their Form I-526 (i.e. before USCIS approves the applicant for a conditional green card.)
Previously, current U.S. visa-holders who were also applying for EB-5 visas had to wait until their I-526 was approved before they could apply to adjust their status via Form I-485. Now, concurrent adjustment of status truly changes the game for people who already work, live, or study in the U.S. under a valid visa and who wish to take advantage of some of the benefits that come with a Green Card.
The adjustment of status allows them to receive a work permit and travel authorization (to leave and return to the US) prior to the EB-5 visa application approval, as long as they are already in the U.S. with a valid visa. There are constraints, though, so it is recommended that each case is discussed with your immigration attorney.
Who can apply for it and how will it affect them?
Concurrent adjustment of status is reserved for holders of valid U.S. immigrant or non-immigrant visas who are already in the United States. Applicants who do not already have a valid U.S. visa or are outside the U.S. cannot benefit from the new law.
Below, we dive into two common non-immigrant visas—the H1-B work visa and the F-1 student visa—to illustrate the benefits of concurrent adjustment of status.
H1-B visa holders:
If you hold an H-1B work visa, you can enjoy some of the major benefits of a green card, such as work authorization that is not tied to a specific employer, as soon as your status is adjusted.
Generally, H-1B holders do not enjoy as much freedom to change employment, let alone industries, as Green Card holders do. They cannot freely quit one job in pursuit of a better fit at another job, since their H-1B visa relies on employer sponsorship (which is difficult to obtain and then repeatedly renew).
But concurrent adjustment of status allows H-1B workers to have such Green Card freedoms even before their I-526 approval. According to LCR Capital Partners, a major investment management firm in the EB-5 industry, visa-holders can find a new job, move into a new field of work if they wish, and even start a business of their own. They can live and work anywhere in the country and are eligible to collect Social Security benefits upon retirement—benefits unavailable to holders of H-1B visas.
F-1 visa holders:
International students on F-1 student visas can also benefit from concurrent adjustment of status. While these students can legally work after graduation through the optional practical training (OPT) program, the application process can be very onerous and the duration and types of employment are limited.
For instance, a student must first apply for and receive both an employment authorization document (EAD) and an approval of their OPT extension application (which can take time) before they are even allowed to start a job. That job must be from a limited list of government-approved employers. Moreover, the visa only allows them to be unemployed for 90 days, after which they need to leave the country if they have not found a job.
In contrast, students who transfer directly to an EB-5 visa can concurrently adjust their status and apply to a job of their choice without dealing with the convoluted process of OPT. As a result, they can be more diligent and conscientious about choosing the right job instead of hastily accepting the first offer they receive.
The takeaway
Concurrent adjustment of status is a substantial reprieve for individuals with certain U.S. visas who wish to transfer to an EB-5 visa. For those who do qualify, concurrent adjustment of status can mean the difference between a seamless life in the United States or constant stress from the limited opportunities that come with a more restrictive visa.
There are subtle rules and regulations associated with the provision, however, that can be tricky to navigate. For instance, the U.S.-based dependent of a primary EB-5 applicant who resides outside the U.S. does not qualify for concurrent adjustment of status. Conversely, if the primary EB-5 applicant lives in the U.S., then a dependent on a student visa may be able to apply for concurrent adjustment of status.
There are many variations and exceptions, so it’s important to get solid guidance from expert advisors, like LCR Capital Partners and your immigration attorney, concerning the EB-5 regulations that apply to your specific situation.
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