Today, March 15, 2022, President Biden signed the FY 2022 omnibus appropriations bill, which includes the EB-5 Reform and Integrity Act of 2022 (“EB-5 Reform Act”), which reinstates the EB-5 Regional Center Program through 2027.
Read a summary of new EB-5 law here.
One of the key exciting features of the EB-5 Reform Act is the option for concurrent filing, i.e., filing the Form I-485 Application to Adjust Status with the Form I-526 EB-5 Immigrant Petition at the same time. EB-5 investors who are already living in the US on nonimmigrant visa status (e.g., H-1B workers, E-2 investors, F-1 students) now can apply for adjustment of status when they file the I-526 petition.
NOTE: This is limited to those whose visa would be available if the I-526 were approved, i.e., those investors who are experiencing visa retrogression are ineligible. Investors outside the U.S. requiring consular processing are also ineligible for concurrent filing.
Key Benefits to EB-5 Concurrent Filing: Worth Authorization and Travel Permit While I-526 Is Pending
Many of Behring’s investors are already in the U.S. on nonimmigrant visas such as H-1B and E-2 visas. Concurrent filing enables these EB-5 investors to file their applications to adjust status while their EB-5 petition is pending. As a result, they can apply for work authorization without having to be tied to their sponsoring employer or business. This gives EB-5 investors more flexibility to pursue other work and business opportunities while they wait for the EB-5 petition to be approved. Such EB-5 investors may also apply for advance parole, so that they may obtain travel permits, allowing EB-5 investors to travel outside and reenter the United States.
While the I-485 Application is not approved faster – EB-5 investors must still wait for their I-526 Petition to be approved – it may compress the overall processing time to get the conditional green card.
Key Considerations for EB-5 Concurrent Filing: Consult Your Immigration Attorney to Learn if You Are Eligible for Concurrent Filing
According to the statute, EB-5 concurrent filing technically takes effect now, but many other provisions, particularly reauthorization of the EB-5 Regional Center Program take effect only after 60 days. We expect the benefit of EB-5 concurrent filing will be able to current as well as new EB-5 investors. USCIS will likely clarify various points of the new law over the next couple months.
There are many important technical details, and thus, EB-5 investors are encouraged to consult their immigration attorneys to learn if they may be eligible for concurrent filing.
EB-5 concurrent filing essentially enables US-based EB-5 investors to enjoy the benefits of having a green card while they wait for their EB-5 investment petitions to be approved. This is an exciting new tool that can enable foreign nations to pursue their own opportunities without the restrictions often imposed on non-immigrant visas.
If you would like to learn more about the EB-5 Reform Law, sign up for our webinar replay for a deep dive of the EB-5 Reform and Integrity Act of 2022, featuring top EB-5 attorneys from KLD LLP.
