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Concurrent Adjustment of Status for EB-5 Investors

Co-written by LCR Capital Partners and Mitchell Wexler, managing partner of Fragoman’s Southern California offices

THIS IS NOT LEGAL ADVICE. APPLICANTS MUST SEEK ADVICE SPECIFIC TO THEIR CASE FROM EXPERIENCED COUNSEL.

One of the most exciting changes to the newly signed EB-5 law relates to the possibility of EB-5 applicants filing for Concurrent Adjustment of Status. Widely known by immigration attorneys, the term is nonetheless new to many EB-5 industry stakeholders, including investors.

LCR has collaborated with the experienced immigration attorney Mitchell Wexler, managing partner of Fragoman’s Southern California offices, to share a few points about this new option that many of our current and future clients would be interested in considering.

Be warned: Concurrent Adjustment of Status may not be the best option for everybody. It is crucial to understand the process, its pros and cons, and discuss this filing with your immigration attorney.

What is filing for Concurrent Adjustment of Status?
This refers to filing your I-526 petition along with an application for Adjustment of Status (AOS). Previously, AOS could only be filed after receiving an I-526 petition approval. The new law now allows you to file for AOS if you already have a pending I-526 petition. You can also concurrently file ancillary applications for the Advance Parole and an Employment Authorization Document (EAD), permitting international travel and the ability to work while the AOS is pending.

Once I file for the Concurrent Adjustment of Status, am I going to be able to travel and work while I wait for my EAD card?
Yes, if you are maintaining nonimmigrant status with an employment-authorized visa, such as L-1 or H-1B. If not, you will need to wait for issuance of the EAD to work and the issuance of the Advance Parole to travel internationally.

I filed my I-526 while living abroad. I have moved to the US under another visa in 2021. Can I file for the Concurrent AOS?
Possibly. There are “intent” issues that must be vetted with experienced counsel in order to avoid an accusation of visa fraud, which is a potential risk in certain scenarios.

Does it matter if the applicant is in the US with a B-1/B-2 or an F1 visa?
These nonimmigrant visas lack the feature known as “dual intent” that would make it safe to file AOS if you are in the US with one of those statuses. In some situations, it is still possible to file AOS if you are in the US under a B-1/B-2 or F nonimmigrant visa. Working with experienced counsel in these cases is critical.

I am the I-526 primary applicant and I live abroad. But my child lives in the US on an F1 (student) visa. Can my child file for Concurrent Adjustment of Status?
No. However, if you are issued an immigrant visa and enter the US under Conditional Green Card status, your child can then apply for AOS. There are pros and cons to doing this, so be sure to fully discuss your options with counsel.

What happens if I file for Concurrent Adjustment of Status and my I-526 petition is denied?
The AOS will be denied, which is why it is a good idea to maintain your nonimmigrant visa status, if possible.

To better understand the Concurrent Adjustment of Status Filing, we have illustrated a few different scenarios.

Please note these examples are highly specific, and you should seek advice from experienced counsel for the specifics of your own case.

Example 1a: F1 Visa (University Freshman)

I am the primary applicant for my I-526 petition, and I am a freshman at a university in the US. What are the pros and cons of filing for Concurrent Adjustment of Status now? Should I wait for my I-526 approval?
This would depend on your country of birth and the likelihood of retrogression in your case. If you were born in China (and current), India or Vietnam, for example, it would be more compelling to consider filing AOS to get the EAD and Advance Parole.

Example 1a: F1 / OPT Visa Expiring

I am the primary applicant for the I-526 petition, and I am a senior at a university in the US. What are the pros and cons of filing for Concurrent Adjustment of Status now? Should I wait for my I-526 approval?
It would depend on how close you are to graduating and getting Optional Practical Training (OPT). OPT issuance might be difficult with an AOS application pending, and you would need to wait for your AOS-based EAD to lawfully gain employment. If it is early enough in your senior year and the EAD is achievable before you graduate and need to apply for OPT, it would be more compelling to seriously consider filing an AOS package.

Example 2: H1-B

I currently have a job and an H-1B visa. What are the pros and cons of filing the Concurrent Adjustment of Status now? Should I wait for my I-526 approval?
The advantages are locking in an EAD if retrogression is likely in your case. A disadvantage would be that if you rely on the EAD and take up employment with another company without doing a “change of employer” H-1B, you would violate your H-1B status, which can be risky in the unlikely event that your I-526 or AOS is denied.

Example 2: E2

I currently have an E-2 visa and my children are 6, 10, and 16 years old. What are the pros and cons of filing the Concurrent Adjustment of Status now? Should I wait for my I-526 approval?
Generally, it would be advantageous to file concurrently. Once an AOS application is filed, any departure from the US prior to the issuance of the Advance Parole would constitute an abandonment of your AOS, so travel obligations would be key to analyze.

While it is a great option for an EB-5 applicant to have the possibility to file for concurrent AOS, there are important considerations to be taken when you and your immigration attorney analyze your specific case and needs. It is essential to understand the process and its positive and negative effects before making a decision.

None of the above mentioned information can be taken as legal advice, and we recommend that you speak with your immigration attorney in case you have any questions and/or are considering applying for concurrent adjustment of status.

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