Adjustment of Status and Consular Processing

Once U.S. Citizenship and Immigration Services (USCIS) approves an alien investor’s Form I-526, Immigrant Petition by Alien Entrepreneur, he or she is eligible to apply for conditional permanent resident status. To this end, EB-5 visa beneficiaries have two options:

The two routes to a conditional green card entail different forms and procedures. We delve into these differences below.

Residing in the U.S.

Investors who are in the U.S. at the time their I-526 petitions are approved are able to remain in the country while waiting for a conditional green card.

Upon receipt of I-526 approval, EB-5 investors in the U.S. are eligible to adjust status by submitting a Form I-485 application to USCIS. Investors should note, however, that they’re able to submit I-485 petitions only after visa numbers are available to them. (For more information on visa number availability, click here.) The spouses and unmarried children under the age of 21 are able to file their I-485 petitions along with the principal alien investor.

USCIS typically processes I-485s within six months to a year after submission. Once the Form I-485 is approved, the alien and his or her derivative beneficiaries are each granted conditional permanent resident status, a sort of probationary period that provides aliens all the rights associated with a green card but that comes with strings attached: all EB-5 requirements, particularly the creation of at least 10 full-time jobs for qualifying U.S. workers, must be fulfilled before a permanent resident green card is issued. Conditional permanent residence has a two-year validity period.

Residing Abroad

Investors who are abroad at the time their I-526 petitions are approved can obtain an immigrant visa at a U.S. consulate. This procedure, called consular processing, involves both USCIS and the U.S. Department of State (DOS).

Aliens first submit a Form DS-230 (Application for Immigrant Visa and Alien Registration) at a consulate or embassy in their home countries. The ensuing process includes a visa interview, collection of the applicant’s biometrics and necessary documentation, and a medical exam, which is conducted by a DOS authorized physician. While it depends on the consulate or embassy in question, the entire process typically takes six months.

Immediate family members, i.e. spouses and unmarried children younger than 21, can undergo consular processing concurrently with the principal immigrant.

A Note on the Two-Year Timeframe

There’s often confusion among EB-5 investors as to when the two-year period begins. This window of time serves to ensure that an EB-5 petitioner satisfies the visa category’s requirements, particularly that of job creation.

According to a USCIS policy memo, AF M Update AD 09-04, because the average processing times for EB-5 petitioners filing for an adjustment of status or undergoing consular processing is roughly six months, the two-year period of conditional residence and, consequently, the start date for measuring the job creation requirement, is six months after the adjudication of their I-526s.

A Note on Visa Numbers for the EB-5 Category

Before 2014, immigrant visa numbers were in effect always available to EB-5 petitioners. By the end of this year, however, as the EB-5 visa grew increasingly popular, retrogression seemed likely. The backlog became reality by the middle of 2015, impacting the majority of EB-5 applicants: alien investors from mainland China. The consequence of the glut is, according to some estimates, a six-year waiting period for an EB-5 petitioner from China.

For more detailed information about the EB-5 visa, refer to the following links:

Updated 06/09/2017