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Visa Processing & Prioritization

Can I file Form I‑485 while my EB‑5 petition is still pending?

Yes, you can file Form I-485 for adjustment of status while your EB-5 petition (Form I-526 or I-526E) is pending, but there are conditions. You must be in the U.S. at the time of filing and a visa number must be available for your category and country. If you are from a country with no visa backlog, you may proceed with filing. This concurrent filing option can speed up the process to obtain a green card, as long as all eligibility conditions are met.

Before the Reform and Integrity Act (RIA) of 2022 expedited processing in our projects took on average 10 months. This was considerably faster than standard processing times which could take several years. Post-RIA investors have been notified that their requests for expedited processing will be held pending approval of the project application (form I-956F). This could add another 6 months to the process unless the I-956F has already been approved when the investor files.

Expedited processing is estimated to take less than a year, but data is still needed to provide an accurate assessment.

Rural investments do not qualify for expedited processing, but they also qualify for a faster process (priority processing). The RIA did not specify what priority processing would look like, but it is intended to be a faster process. Evidence from some of the early investors in post RIA rural projects suggest that priority processing could take a year or less which in effect is similar to expedited processing. It remains to be seen if these fast processing times will hold up as more investors file in rural projects.

Concurrent filing is available to EB-5 petitioners that are in the U.S. on a nonimmigrant visa (H-1B, L-1, F-1, E-2) and are in a category that has visa numbers available. The process involves submitting the immigrant petition (Form I-526E) and the adjustment of status application (Form I-485) concurrently. Prior to the RIA investors had to wait for the I-526 approval before they could file for adjustment of status.

Visa availability plays a crucial role in the timeline of your EB-5 application. Each year, a limited number of EB-5 visas are issued. Once your petition is approved, your wait time for a visa depends on the number of visas left for your nationality. If your home country has used up its annual allotment, you may wait longer despite having an approved petition. This situation is known as “retrogression.” It means more waiting until new visas are available in the next fiscal year.

“Retrogression” happens when more people apply for a visa in a certain category or from a specific country than there are visas available. This causes a delay, moving the priority date backward, and extending the wait time for many investors.

A “backlog” is when there are more visa applicants on the waiting list than visas available, leading to long processing times. In simple terms, retrogression is a specific cause of delay, while a backlog is the collection of pending applications.

If your country is oversubscribed for EB-5 visas, it means that there are more applicants than the number of visas available. When this happens:
  • A visa bulletin issued by the U.S. Department of State determines when you can proceed.
  • You’ll need to wait until a visa is available, based on your priority date.
  • Your priority date is the day your EB-5 petition was filed.
  • Being from a country with oversubscription may result in longer processing times.
  • Consider investing in a TEA or rural project, which might receive priority processing.
The EB-5 priority date is like your spot in line for a green card. It is the date the USCIS receives your I-526 petition. This date decides when you can move to the next step—applying for a green card. The U.S. Department of State has a visa bulletin that shows when priority dates become current or ready for processing. If your priority date is current, you can apply for and receive your green card. If not, you must wait until it becomes current. The priority date is important because it affects how long you must wait to become a U.S. permanent resident.
The EB-5 program has special reserved visa categories to help investors. These categories prioritize certain investment areas, making the green card process quicker:
  • Rural Areas: These are areas with a low population outside of major cities.
  • High Unemployment Areas: These areas have higher unemployment rates than the national average, needing economic boosts.
  • Infrastructure Projects: These projects focus on improving public works like roads and bridges.
By investing in these categories, you can benefit from faster visa processing due to priority status.
Unfortunately, you cannot directly upgrade from a set-aside visa to an unreserved one in the EB-5 Immigrant Investor Program. Set-aside visas are reserved for specific project categories, like those in rural or high-unemployment areas. Once you apply under a set-aside category, you must remain in that category until your petition is processed. If you wish to change your investment category, you would need to withdraw your current application and reapply for the unreserved category, which may involve starting the process over.

Being in a Targeted Employment Area (TEA) can offer significant advantages for EB-5 investors. TEAs are areas with higher unemployment rates or rural locations. The benefits include:

  • Lower Investment Requirement: Investing in a TEA often requires only $800,000 compared to a higher amount in non-TEA areas.
  • Priority Processing: TEA projects, especially those in rural areas, can receive expedited processing, helping investors get their green cards faster.
  • High Approval Rates: TEA projects usually follow strict guidelines, reducing the risk of immigration issues.

Choosing a TEA project can make the EB-5 process faster and more affordable.

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