The RIA of 2022 created one of the most investor-friendly changes in EB-5 history: allowing certain applicants already in the U.S. to file Form I-485 (green card application) concurrently with their EB-5 petition. This change was a game-changer, letting investors begin living and working in the U.S. immediately while their EB-5 petition is pending.
The Impact of Concurrent Filing
Before the RIA, EB-5 investors in the U.S. had to wait until their I-526 petition (or I-526E for regional center investors) was approved (and wait for visa availability) before they could file for adjustment of status (Form I-485) to get a green card. During that time, investors already in the U.S. could make the EB-5 investment, but if they lost their underlying visa status, would
need to leave and consular process to obtain an immigrant visa.
Because the reserved/set-aside categories have remained Current in the Visa Bulletin since creation in 2022, if you are already in the United States on a valid non-immigrant visa status (for example, H-1B, F-1, L-1, O-1, E-2, or others), you can submit all at the same time:
- Your EB-5 petition (Form I-526E),
- Your green card adjustment application (Form I-485), and
- Applications for work and travel authorization (Forms I-765 and I-131), as interim benefits while the Form I-485 remains pending.
Since the RIA’s changes, more than half of EB-5 applications are filed by immigrant investors from within the United States. Many highly skilled professionals, international students who want to stay in the U.S. permanently, entrepreneurs, executives, and specialized workers who want to transition from temporary visas to permanent are using EB-5 to obtain a green card faster than traditional employment-based routes. For these groups, concurrent filing is the bridge that allows them to maintain life in the U.S. without interruption while their EB-5 case is pending.
Lawful Immigration Status v. Period of Authorized Stay
Once an EB-5 investor files Form I-526E together with Form I-485 (adjustment of status), they don’t technically have to keep their old non-immigrant visa status. For example, they could stop going to school, leave their H-1B job, or start working on an Employment Authorization Document (EAD) after it’s approved. If that happens, they no longer have valid non-immigrant status. Instead, they are considered to be in a “period of authorized stay” while the I-485 is pending. During this time, they are not accruing unlawful presence. But there’s an important catch: having an I-485 pending does not protect someone from being placed in removal proceedings. If USCIS ultimately denies the adjustment application, the person could become removable. The distinction is that the pending I-485 shields them from unlawful presence penalties, but it does not guarantee immunity from enforcement.
Key EB-5 Concurrent Filing Strategies
Concurrent filing sounds simple—just file everything at once—but timing is critical, and retaining experienced immigration attorneys to review individual circumstances and properly advise is key.
Immigrant intent complicates concurrent filing. Nonimmigrant visas generally require a residence abroad, and filing I-485 too soon after entry can trigger misrepresentation concerns. H and L visas, which permit dual intent, are exceptions.
Furthermore, non-immigrant intent generally means having a residence abroad that he or she has no intention of abandoning, and allows the individual to legally enter and stay in the United States for only a limited period. Taking action that is inconsistent with that stated intent shortly after one’s initial entry, including the filing of an adjustment of status application, can cause dire immigration consequences. There is no bright-line, 30/60/90 day rule that USCIS applies when determining whether conduct in the U.S. is inconsistent with representations the applicant made to a consular officer or DHS officer when applying for a visa, admission, or another immigration benefit. USCIS scrutiny has increased, especially for investors who fall out of status or have immigration violations. Denied adjustments may force consular processing abroad. Smart investors should: (1) work with experienced immigration counsel, (2) partner with compliance-focused EB-5 operators, and (3) stay informed about shifting policies.
- Work with an experienced, responsive immigration attorney who can map out the right timing strategy based on your visa history and travel plans.
- Partner with compliance-focused EB-5 operators who understand both the investment and immigration sides of the process.
- Stay informed about shifting policies that could affect your ability to remain in the U.S. or travel while your adjustment is pending.
Conclusion
Concurrent filing has already reshaped EB-5 strategy for thousands of investors. Used wisely, it is the fastest path to a green card. Used carelessly, it risks costly delays. Strategy and compliance are everything.
Download EB-5 After the RIA White Paper
Investors aren’t the only ones benefiting from the passing of the EB-5 Reform and Integrity Act (RIA) in March 2022. As the most comprehensive legislative reform in the Program’s history, rural states throughout the United States have seen transformative effects from EB-5 financed projects.
CanAm’s white paper brings together leading voices from across the EB-5 stakeholder community to reflect on the RIA’s powerful effects and measure the Program’s impact to date like never before.
Watch the Webcast: Navigating the Future of EB-5
In a recent CanAm webinar, Chief Operating Officer Christine Chen sat down with Aaron Grau, Executive Director of IIUSA, and Lee Li, IIUSA’s Director of Policy Research and Data Analytics. Their wide-ranging conversation covered everything from the grandfathering timeline to new filing trends, updated adjudication data, rural investment growth, and what the pathway to a permanent reauthorization could look like.
About the Author
Joey Barnett
Partner, WR Immigration
Joey Barnett is a partner at WR Immigration and a member of its EB-5 and business immigration practices. He is licensed as an attorney in Illinois, Wisconsin, and the District of Columbia, practices exclusively in immigration and nationality law, and has been selected for inclusion in The Best Lawyers in America® since 2023. Mr. Barnett has extensive experience representing immigrant investors seeking permanent residency in the United States through USCIS-designated Regional Centers and investment in their own businesses. He currently serves as the Vice Chair on the American Immigration Lawyers Association’s (AILA) EB-5 Committee and is a member of the IIUSA Editorial Board. He is a former member of AILA’s Benefits Litigation Committee. Mr. Barnett was selected by industry peers as a Top 5 Rising Star in EB-5 in 2019. In 2023 he was recognized as a Top 25 Attorney and again earned that recognition in 2024 Top 25 Immigration Attorneys.
