Can and/or should I file for my adjustment of status while I have a pending I-526 for my EB-5?
This is a looming question for many EB-5 investors right now after the March 11, 2022 re-authorization of the EB-5 regional center program. (If you have questions about what changes were made, read here).
The main change that has sparked this question is the new language on Adjustment of Status.
Investors and family already legally in the U.S. and eligible for a visa number may concurrently file applications for adjustment of status (avoiding consular visa processing) along with or while awaiting adjudication of the investor’s I-526 petition.
As you have likely read, if you file an adjustment of status in the United States while here on a legal status – you can have “authorized stay” in the United States while that case is pending. This would effectively enable you to stay in the United States until your I-526 is approved.
The pros of doing so are pretty clear:
PROS:
- Applying for your I-485 while you are here in the USA allows you to indefinitely stay here while your I-526 case is pending.
- Once your I-526 is approved, if you have a pending I-485 it is likely they would be issued concurrently eliminating the wait time for your green card and therefore – ability to work.
But there is a potential negative effect, one that good attorneys are on the lookout for and should disclose before you make the decision to apply for your I-485 with a pending I-526.
It starts with understanding that there are basically three statuses you can have while in the United States.
- Lawful Presence – Lawfully present in the USA with a valid visa or immigrant status that is not expired.
- Authorized Stay – Permitted to stay in the USA by USCIS, even if visa has expired.
- Unlawful Presence – Illegal to be in the USA.
When you apply for an I-485 with a pending I-526, you are considered in “Pending Adjustment of Status” until the I-485 is adjudicated. If your I-526 is approved, there is no issue. However, if your I-526 is denied, your I-485 would be denied. You will then be subject to accrual of unlawful presence.
If you accrue over 6 months of unlawful presence, you may be barred from entry to the USA for 3+ years or even permanently (depending on how much unlawful presence you have accrued).
When would it not be ideal to apply for adjustment of status right now?
- If you are currently in a regional center project and the visa bulletin is not available.
AS of March 2022 (and going through April), the visa bulletin currently shows regional centers are unavailable – meaning they are not current and not eligible for adjustment of status.
- If you have plans to travel outside the USA soon after applying for adjustment of status.
Once you apply for your adjustment of status (I-485), you MUST stay in the United States while the application is pending. If you leave the United States while your I-485 is pending, you may be considered to have abandoned your application and have to restart the process upon return. If you concurrently file for “advance parole” that allows you to travel while your I-485 is pending, you will need to wait until it is issued before traveling.
- If you want to come on a short-term visa and apply for Adjustment of Status.
When you apply for a visa, you are informing the USA you have a specific intent. For example, if you apply for a B1//B2, it is presumed you are coming to the USA to visit for a temporary period. You must wait several months after your last entry into the United States before you can file for adjustment of status without violating your non-immigrant intent on your B1/B2. Secondly, a B1/B2 will be difficult to renew repeatedly once you file your adjustment of status, as you have now demonstrated your intent to immigrate to the United States. Should your B1/B2 status expire while adjustment of status is pending or if the adjustment of status is denied for any reason, you will no longer be in lawful status in the United States. You will then be at risk of accruing unlawful presence from the date your status expired.
- If you are nearing the maximum term of a visa.
For example, if you are here on a L-1 and are in year 6 and only have 1 year left and now want to adjust status to EB-5 – you would face the same issues in the B1/B2 example.
- If you applied for EB-5 with a “skeletal application.”
A concern for many applicants should be if you rushed your application at the last minute with a “skeletal application” – an application that had the structure for your EB-5 Source of Funds but did not have clear supporting documents at the time of application. These applications will be under higher scrutiny and may begin with a NOID (notice of intent to deny).
- If you are uncertain about the success of the EB-5 project and its ability to create 10 jobs for 2 years per EB-5 requirements.
Over the last 2 years during covid, there have been many cases where projects have been unable to finish completion, raise the funds required, or otherwise unable to create the jobs required.
- If for any other reason, you are unsure of the success of your chances for I-526 approval.
If for any reason you believe you may not have all the documents available for approval and would cause an issue for your attorney to gather supporting documents. For example, some applicants may have used 3rd party foreign money exchanges which refuse to provide clear documentation for the exchange of funds. Relying on a 3rd party to provide these documents and if they refuse to provide said documents which could result in denial may lessen chances for approval.
What are ideal scenarios to apply for my I-485 with a pending I-526?
- If you are in a Direct EB-5 project, your visa is current, and you have an existing dual-intent non-immigrant status that you can renew and is not set to expire soon. This can include:
- L1
- H1-B & H4
- O-1
- If you are in a Direct EB-5 project, your visa is current, and you have an existing non-immigrant status that is not set to expire soon. This can include:
- E-2
- F-1
- TN
At SMS Law Firm, we are prepared to assist clients. If you are still interested in applying in situations which may not be ideal, please provide us the situation you are facing by scheduling a consultation or email info@smslawfirm.us, so we can better serve you.