Process and timing
Concurrent filing
Also called concurrent filing I-485, file together.
Concurrent filing is submitting Form I-485 together with Form I-526 or I-526E, or while the petition is still pending, instead of waiting for the petition to be approved. 8 U.S.C. 1255(n) permits it whenever approval of the petition would make a visa immediately available to the investor.
What it decides
The EB-5 Reform and Integrity Act of 2022 added 8 U.S.C. 1255(n) (Pub. L. 117-103, div. BB, sec. 102(d)(2), 15 March 2022, 136 Stat. 1075). Where approval of a fifth preference petition "would make a visa immediately available", the adjustment application "shall be considered to be properly filed whether the application is submitted concurrently with, or subsequent to, the visa petition". That condition decides who can actually use it. Concurrent filing is open only when the investor's category and set-aside are current for their country of chargeability on the Adjustment of Status Filing Chart that USCIS designates for the month of filing. An investor whose category is backlogged cannot file the I-485 early, whatever the state of the petition. The regulation was never conformed to the statute. 8 CFR 245.2(a)(2)(i)(B), last amended 23 December 2016, extends concurrent filing to classifications under 201(b)(2)(A)(i), 203(a) and 203(b)(1), (2) and (3), then adds: "For any other classification, the alien beneficiary may file the adjustment application only after the Service has approved the visa petition." Read alone, the regulation forecloses what the statute allows. The statute is later in time and controls, and USCIS follows it. The Policy Manual lists the fifth preference among the categories permitted to file concurrently (7 USCIS-PM A.3(C)), and the EB-5 Immigrant Investor Process page tells an investor with a visa immediately available to file the I-485 together with the I-526 or I-526E, while it is pending, or after it is approved. Neither USCIS source cites 8 U.S.C. 1255(n), and the Policy Manual footnote points only to the unamended regulation. Since 1 September 2022 USCIS rejects a single combined fee payment covering an I-526 or I-526E and an accompanying I-485, I-131 or I-765. Each form needs its own payment, and a combined one is returned. Concurrent filing is available only to an investor already in the United States and otherwise eligible to adjust status. An investor abroad has no equivalent and files Form DS-260 with the Department of State after the petition is approved.
Where this is explained properly
Pages here that go into concurrent filing rather than mentioning it.
Related terms
- Adjustment of statusAdjustment of status is the process under 8 U.S.C. 1255 by which someone already in the United States becomes a permanent resident without leaving, on Form I-485, instead of collecting an immigrant visa at a consulate abroad. An EB-5 investor who adjusts is granted conditional permanent residence for two years, the same status a consular applicant receives on admission.
- Consular processingConsular processing is the route to permanent residence through a US embassy or consulate abroad, on Form DS-260 and an interview, rather than by adjusting status inside the United States. It is the only route for an investor who stays outside the country, and it is open by choice to one already inside.
- BacklogBacklog is the demand already waiting ahead of an investor in the same visa category, the same country of chargeability and, since the 2022 set-asides, the same reserved or unreserved pool, which must be worked through before a visa number reaches them.
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