Complete Guide To Concurrent Filing for EB-5

WRITTEN BY

EB-5 Insider Team

A group of professionals with years of experience helping people immigrate to the US

Note: This article is for informational purposes only. We are not providing legal advice or selling securities. The articles and content on this site are of a general informational nature only and should not be relied upon for individual circumstances.

Concurrent filing allows EB-5 investors currently residing in the United States to acquire their green card and conditional permanent residency without returning to their home country. It also enables them to work and travel freely across the United States before their EB-5 visa is issued.

The EB-5 Program Reform and Integrity Act (RIA) of 2022 authorized certain investors to file their Form I-485 (Application for Adjustment of Status) along with their Form I-526 or I-526E (Immigration Petition by Standalone Investor and Regional Center Investor, respectively). This process is known as concurrent filing and can be utilized where a visa is available and when the applicant is already residing in the United States.

Available visas can be found in the ‘Visa Bulletin’ of the U.S. Department of State’s website, which provides a monthly update on visa availability. Concurrent filing is only available for eligible investors who meet the above requirements. Submitting these documents concurrently enables EB-5 investors to seek employment and embark on international travel while their I-526 petition is being processed.

We’re sharing everything you need to know about concurrent filing, who is eligible, and the benefits of current filing.

What is Concurrent Filing?

The EB-5 Reform and Integrity Act of 2022 brought several changes and new rules to the EB-5 Immigrant Investor Program, including allowing concurrent filing for Adjustment of Status alongside the I-526 petition.

Before this legislation, investors seeking permanent residency in the United States through the EB-5 program had to wait until their EB-5 application was approved with the I-526 petition before they could apply for an adjustment of status using Form I-485. Investors would have to maintain their legal status using another visa type in the interim period. 

The updated legislation means that foreign investors in the United States on non-immigrant visas can now file their I-526/I-526E and I-485 concurrently. It allows them to enjoy the benefits of permanent residency status while awaiting the response to their I-526 petition.

Who is Eligible for Concurrent Filing with EB-5 Applications?

Investors can file their I-485 before their I-526 is approved if a visa is ‘available’ at the time they make their application. For new EB-5 investors, it means these two forms can be submitted concurrently. For current EB-5 investors, it means they can submit their I-485 before their currently pending I-526 is approved.

An application for adjustment of status includes Form I-765 and I-131, which allow for work authorization and travel, respectively. Concurrent filing enables EB-5 investors to begin working, traveling, and developing roots in the United States while they wait for their I-526 petition to be approved.

Type of Visas Eligible for Concurrent Filing

Concurrent filing is not a new mechanism. It has previously been available for the immediate relatives of United States citizens, as these visas do not have a numerical limitation. While concurrent filing is now available for EB-5 visas, foreign investors will have to meet the approved basis of eligibility to file concurrently. There will also need to be a visa available for them.

Concurrent filing is also available for individuals to adjust their permanent resident status when an I-40 is filed on their behalf, classifying them in one of the EB categories. An immigrant visa number must be immediately available, and it can be checked using the ‘Visa Bulletin’.

Immigrants subject to a two-year home residence requirement are not eligible for concurrent filing, and individuals who have violated their non-immigrant status or engaged in unauthorized employment are also not eligible.

The Process for Concurrent Filing with EB-5 Applications

Before starting the process of concurrent filing, individuals must determine if they are eligible for the program. Concurrent filing includes Form I-485, which adjusts the status of an individual from a non-immigrant visa to a permanent resident awaiting adjudication on their EB-5 visa. Concurrent filing is allowed for certain groups, including for eligible family members where a visa number is immediately available.

You can determine whether you will qualify for concurrent filing at the start of your EB-5 visa process. To get started, an individual must make an EB-5 investment. The minimum investment is set at $1,050,00 for non-TEA projects and $800,000 for projects in Targeted Employment Areas (TEA). This capital is ‘at risk’ and must be used to create at least 10 jobs. Foreign investors should do their due diligence and research the project they’re investing in to ensure it’ll meet the requirements of the EB-5 program.

After the immigrant makes their investment, they must file either Form I-526 or Form I-526E for standalone investor or regional center investor, respectively. From January 2024, the filing fee for Form I-526E is $3,675 plus an additional $1,000. Form I-526E requires information on the investor and the specifics of their investment, including information about the regional center. Your chosen regional center should be able to provide the necessary information to complete your Form I-526E.

During this time, the EB-5 investor can also file their Form I-485, known as an ‘Application to Register Permanent Residence’. This form includes questions on the individual’s current immigration status and extensive questions about their personal life, including organizations they have been a member of.

What Comes After Concurrent Filing?

The EB-5 investor journey doesn’t end with concurrent filing. An EB-5 investor may also need to submit a Form I-131 to apply for permission to travel internationally. Individuals currently in the United States on an employment-based visa can continue working so long as their work visa remains valid. Otherwise, they’ll need to submit a Form I-765 to request permission to work legally in the United States.

A biometrics appointment will be scheduled after the USCIS receives your concurrent filing. This appointment is where you’ll provide photographs, fingerprints, and other information required for the USCIS to conduct a criminal background check. USCIS may also schedule an interview to further assess your eligibility under the EB-5 program. You may be asked to provide additional information about your investment project or funding source. It’s best to have an immigration lawyer involved in this process to ensure you have all the necessary information to tick all the boxes during this interview.

USCIS will decide whether to grant conditional permanent residency status after your Form I-526/I-526E and Form I-485 are processed. If your application is successful, you’ll be able to live and work in the United States for two years. Your spouse and any qualifying dependents, unmarried children under 21 years of age, will receive the same rights.

Your conditional permanent residency is valid for 2-years. During the final 90 days of this period, you are required to submit a Form I-829 to remove the conditions of your permanent residency. If you fail to do this, your visa will automatically expire, and you may be deported. Your Form I-829 will require you to submit evidence to show that you have met the conditions of the EB-5 program, including job creation.

What is the Processing Time for Concurrent Filing for EB-5 Visas?

Concurrent filing is intended to reform the EB-5 investor program and make applications more effective for foreign investors already residing in the U.S. on non-immigrant visas. Its main appeal is that it allows applicants to remain in the United States and speeds up the processing time of their applications.

Processing time for concurrent filings varies but is drastically reduced compared to individual filing. A 1-526 petition can take up to 56 months to process, and a 1-485 petition can take up to 49 months individually. Concurrent filing allows for these petitions to be approved shortly after each other.

The Benefits of Concurrent Filing

Concurrent filing makes the EB-5 investor process more efficient. Forms I-526/I-526E and Form I-485 are the most time-consuming parts of the approval process. 80% of I-526/I-526E petitions are processed within 55 months, according to data provided by USCIS. The processing time is even longer for applicants from China, typically taking up to 88 months.

Without concurrent filing, EB-5 investors can typically expect to wait at least a year for their I-525 and I-485 petitions to be approved. The unpredictability of these processing times means that concurrent filing helps significantly shorten the wait time for conditional permanent residency, making the EB-5 visa even more appealing to qualifying investors.

Concurrent filing also allows qualifying immigrants to avoid having to go through consular processing as part of their application. Filing a Form I-485 while residing in the United States means that applicants do not have to return to their home countries for consular processing, which can add additional delays to receiving conditional permanent residency status.

EB-5 investors who take advantage of concurrent filing can transition to permanent resident status faster to start utilizing the benefits of living, working, and traveling freely through the United States.

Obtaining U.S. Citizenship through Investment

Concurrent filing can speed up the process of obtaining U.S. citizenship through investment. After you receive your green card, you should spend at least 180 days per year in the United States for 5 years before applying for U.S. citizenship.

EB-5 Insider simplifies your path to U.S. residency and citizenship through investment. Concurrent filing streamlines the process of securing an EB-5 visa. You can obtain a permanent U.S. green card for yourself, your spouse, and any unmarried children under 21 years of age for an investment of $800,000.

Start the process of applying for an EB-5 visa today, or contact our team for more information.

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