The EB-5 Concurrent Filing Process for U.S.-Based Investors on Nonimmigrant Visas

Are you currently residing in the U.S. on an H-1B, E-2, F-1, or TN visa? You may be able to receive in-country benefits such as employment authorization, freedom to travel, and a Green Card—all without ever having to leave the United States.

What Is EB-5 Concurrent Filing?

EB-5 concurrent filing is a new addition to the immigration processes, thanks to the EB-5 Reform and Integrity Act of 2022. The change allows non-immigrant visa holders already in the U.S. to file petitions simultaneously with I-526E and I-485 forms.

Before the new change to EB-5 policies investors needed their petition approval before filing to adjust their immigration status. Applicants who apply for EB-5 concurrent filing now maintain their current visa status during petition processing since they can maintain employment and travel privileges.

Who Qualifies for EB-5 Concurrent Filing?

Concurrent filing is available to foreign nationals who:

• Are physically present in the United States on a valid nonimmigrant visa (e.g., H-1B, E-2, F-1, TN, L-1, O-1)
• Have filed or are filing a qualifying EB-5 immigrant petition (Form I-526E)
• Are exempted from visa retrogression, or are investing in approved set-aside categories (e.g., rural or high-unemployment areas) in order to escape retrogression
• Are eligible to adjust status under U.S. immigration law
• Maintain lawful immigration status when applying

Note: Every year the U.S. government caps the number of visas (Green Cards) issued per category, including the EB-5 investor visa. In addition, there is a limit on the number of visas that can be issued to nationals of a particular country. If the demand by the citizens of a certain country (India and China, for example) exceeds the annual cap for EB-5 visas, then the U.S. government establishes a queue. This queue is what the retrogression of the visa is. Applicants have to wait longer for their date of prominence (the date they filed) to be deemed eligible for processing. Until this date, there is no progress possible in the immigration procedure.

EB-5 Investment Requirements

To be eligible for the EB-5 program, the investor must:

• In order to apply for the EB-5 Program, an investor must meet the following requirements:
• Make an investment of $1,050,000 in a new commercial enterprise; or
• Make an investment of $800,000 in a Targeted Employment Area (TEA) – a rural area or an urban area that has high unemployment
• Document the source of funds—showing the path of investment into the venture—and provide proof of 10 full-time jobs created or maintained for U.S. employees
• Participate in the management or policy-making of the business (either directly or indirectly through a regional center)

Benefits of EB-5 Concurrent Filing

1. Faster Access to Work Authorization

Concurrent filing allows investors and their dependents to apply for an Employment Authorization Document (EAD). This enables them to work without needing employer sponsorship—unlike H-1B or F-1 visa holders.

2. Freedom to Travel

Investors may apply for Advance Parole, under which they are permitted to travel outside the U.S. and re-enter as the status adjustment is pending. It avoids renewal or processing at a foreign consulate. 

3. Stay Legally in the U.S. While You Wait

The moment Form I-485 is filed, the investor’s status is considered to be “pending adjustment.” Being in a pending status allows the individual to be in the U.S. legally even after his/her underlying visa has lapsed.

4. No Ties to Sponsoring Employer or School

Unlike the H-1B or F-1, pending adjustment status under EB-5 does not bind the applicant to an employer, a field of study, or a school. You can change employers, put school on hold, or even quit work. 

5. Inclusion of Dependents

Spouses and unmarried children below the age of 21 years can at the same time also apply for adjustment of status, employment authorization, and travel permits. The entire family can proceed together towards becoming a permanent resident.

6. Avoid Long Wait Times Abroad

Consular processing can have delays and unpredictable adjudication. Concurrent filing helps you stay in the United States with more manageable and quicker steps to getting a Green Card.

Work with trusted experts

Managing EB-5 investments is complex, but you don’t have to do it by yourself. Dealing with experienced professionals—immigration attorneys, financial advisors, and registered regional centers—can make it a reassuring experience and reduce the possibility of costly mistakes.

Ready to invest in EB-5 wisely?

Whether you’re new to EB-5 or down to your last few project possibilities, we’re here to help. Call to schedule a consultation.