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EB-5 Question of the Week: What is concurrent filing?

The concept of concurrent filing for the EB-5 Immigrant Investor Program was introduced by the EB-5 Reform and Integrity Act of 2022 (RIA), the new EB-5 legislation which was signed into law in March 2022. Concurrent filing allows foreign investors to file their EB-5 application (I-526E petition) and application for adjustment of status (I-485 petition) with the United States Citizenship and Immigration Services (USCIS) simultaneously. Therefore, applicants can live and work in the United States while they await the adjudication of their EB-5 application.

The EB-5 program allows foreign investors to obtain U.S. Green Cards for themselves and their qualifying dependents (spouse and children under 21 years of age) with a minimum investment of $800,000 in a new commercial enterprise in the United States. Previously, EB-5 applicants were required to await the approval of their EB-5 application prior to moving to the United States. However, with the RIA’s introduction of concurrent filing, applicants can now file and immediately live and work in the United States. Concurrent filing applies to certain EB-5 investors residing in the United States. Such investors will receive a travel permit allowing them to travel outside the U.S. as well as work authorization to work in the United States.

An applicant wishing to apply for concurrent filing must first have legal status in the U.S. through a non-immigrant visa. If an applicant has entered the U.S. with a B, F, TN, E-2, or O visa, they must have non-immigrant (temporary) intent to enter the U.S. Upon arrival, if there is a change in circumstances and they wish to remain in the United States by virtue of filing an EB-5 application, they must wait 90 days after they have entered the U.S on their non-immigrant visa to be eligible to apply for their adjustment of status (AOS) application. In contrast, applicants in the U.S. on an H1-B or L-1 visa can file their AOS application concurrently with their I-526E petition because those individuals are deemed to have “dual intent,” meaning they can have both immigrant and non-immigrant intent.

Once an AOS application is submitted to USCIS, applicants must then also apply for Employment Authorization (I-765 petition), which will provide them a work permit until permanent residence is granted. Upon approval of an applicant’s I-765 petition, USCIS will grant an employment card (EAD card) authorizing the applicant to work in the United States as well as a travel permit allowing the applicant to travel outside of the United States.

Once an applicant has started the concurrent filing process, they must not leave the United States until they have received their travel permit as leaving the country without a travel permit is deemed as abandoning the application. Given that the processing time for concurrent filing is around 10 months, this option is not suitable for all EB-5 investors. Concurrent filing is suitable for students and people willing to stay in the United States. In contrast, concurrent filing is not suitable for people that have professional commitments out of the country and must travel abroad frequently.

If you are interested in finding out more about the U.S. golden visa program and whether you and your family qualify for concurrent filing, contact our team today for a free consultation.

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