In recent years, EB-5 investment immigration has become one of the most closely watched new policies by applicants. The significant adjustment lies not in the investment amount but in the changes made to the application process.
Previously, many EB-5 applicants had to patiently wait for their cases to be processed after submitting their investment immigration applications. During this waiting period, if they did not have any other legal status, they could not work freely or stay outside the United States for an extended period.
However, after the implementation of the 2022 EB-5 Reform and Integrity Act (RIA), a crucial change has taken place in this situation.
Qualified applicants are now allowed to concurrently apply for a green card, employment authorization document (EAD, commonly known as a work permit), and advance parole within the United States. This system not only improves application efficiency but also alters the way many families plan their immigration.
This procedure, known in U.S. immigration law as Concurrent Filing, allows eligible applicants to file for the following simultaneously when submitting their EB-5 investment immigration application:
– Adjustment of Status Application (I-485)
– Employment Authorization Document Application (EAD, work permit)
– Advance Parole Application for re-entering the U.S.
These three applications can be processed concurrently under the law, hence the term “concurrent filing.”
Prior to the RIA implementation, most EB-5 applicants had to follow the traditional process, which involved first submitting the EB-5 investment immigration application. Upon approval of the application and when visa quotas became available, further steps could be taken to adjust status or process the immigrant visa.
Throughout the waiting process, if the applicant was already in the U.S., they had to rely on their existing legal status to continue staying. For instance, individuals holding F-1 student visas, H-1B work visas, or L-1 intra-company transfer visas needed to maintain their original status, or it could potentially affect subsequent applications.
For many families, this waiting period was often lengthy and added pressure to maintain their status.
Post-RIA implementation, as long as applicants meet the requirements of U.S. immigration law and there are available visa slots for the category, eligible individuals can file the aforementioned applications concurrently within the U.S.
This means that during the waiting period for EB-5 case processing, applicants have the opportunity to legally obtain employment authorization to work in the U.S. and also travel in and out of the country once they have acquired the necessary travel document, without being entirely restricted by their previous non-immigrant status. For applicants already living, studying, or working in the U.S., this reform holds significant importance.
Not all EB-5 applicants are eligible for concurrent filing. Generally, applicants need to meet several basic criteria: firstly, being legally present in the U.S.; secondly, meeting the legal requirements for adjusting status; and thirdly, having available visa slots for the category. Additionally, they must also comply with other adjustment of status requirements under U.S. immigration law.
Determining whether one meets these criteria requires a case-by-case analysis based on individual circumstances.
Previously, many applicants, while awaiting EB-5 approval, had to continue relying on other visa statuses due to the unavailability of work permits. If their existing status was approaching expiration, they might need to apply for an extension, change status, or potentially disrupt family plans.
The new system offers more choices. For example, an applicant already legally working in the U.S. and meeting the requirements could file for an EB-5 application and simultaneously apply for a work permit if eligible. Once the work permit is approved, even if they no longer rely on their original work visa in the future, they may continue working in the U.S. lawfully.
For applicants looking to start a business, transition careers, or redefine their professional development, this undoubtedly adds flexibility.
Advance Parole, a crucial component of the concurrent application system, also plays an important role.
Previously, some applicants could negatively impact their pending applications if they left the U.S. without permission during the status adjustment process. The Advance Parole system enables eligible applicants to lawfully depart and return to the U.S. without needing to reapply for a visa once approved.
However, it’s important to note that Advance Parole is not a regular visa and may not be applicable in all situations. Prior to making international travel arrangements, applicants should fully understand relevant legal regulations and make decisions based on their individual circumstances.
Many applicants mistakenly believe that the concurrent filing system implies lowered EB-5 application standards, which is not the case. RIA reform changes the application process, not the fundamental legal requirements of EB-5. Applicants still need to comply with investment laws, prove the legitimacy of their funding sources, and meet various employment creation criteria. The U.S. immigration authorities have not lowered their scrutiny standards for application materials due to the ability to concurrently file for work permits and travel documents.
Therefore, this reform enhances the convenience of the application process, not relaxes the approval conditions.
The significance of this reform is most apparent for individuals already residing legally in the U.S. For instance, individuals holding student visas, work visas, or other legal statuses, if meeting the EB-5 application criteria and satisfying visa quota requirements, can utilize this system to reduce uncertainty during the waiting period.
However, for applicants processing immigrant visas outside the U.S., the concurrent filing system typically does not apply, and their application process still needs to be handled following overseas consular procedures.
The allowance for eligible EB-5 applicants to concurrently apply for a green card, work permit, and travel document within the U.S. post-RIA implementation is one of the most significant procedural reforms in the EB-5 program in recent years. This reform does not lower the legal threshold of EB-5 but offers greater convenience to eligible applicants, enabling them to work, live, and plan for the future with more peace of mind during the immigration application waiting period. However, concurrent filing is not applicable to everyone and cannot substitute comprehensive assessments of investment projects and legal procedures. Applicants should thoroughly understand their status, visa quotas, relevant legal provisions, and tailor a reasonable application plan to make important decisions.
This article is for informational purposes regarding general immigration systems and practical observations and does not constitute legal advice or specific legal recommendations for any particular case. Actual case outcomes depend on individual facts and applicable laws. In cases involving individuals, consulting a qualified immigration lawyer is advisable.