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EB-5 Immigrant Investors and Concurrent Adjustment of Status

WR Immigration © 2022

The 2022 EB-5 Reform and Integrity Act (RIA) has modified the Immigration and Nationality Act to allow eligible EB-5 investors and their derivative family members to file a Form I-485, Application to Register Permanent Residence or Adjust Status at the same time the EB-5 investor files a Form I-526E, Immigrant Petition by Regional Center Investor, or at any point prior to Form I-526 approval. Before the RIA, EB-5 investors would need to wait for Form I-526 approval before being eligible to file a Form I-485 creating delays of 2-3 years or more. This concurrent filing can only be done if there is a visa available under the State Department

The biggest benefit of a Form I-485 adjustment filing is that it allows the applicants to stay in the U.S. legally while waiting for a decision on their I-526 immigrant visa petitions, which has been too slow. When an individual files a Form I-485 adjustment, they can also file a Form I-765, Application for Employment Authorization and a Form I-131, Application for Advance Parole, for work and travel authorization (called “interim benefits”) during the time in which the Form I-485 is pending.

Unless the applicant already has work authorization (such as a person on an L-1 company transfer visa or an H-1B specialty occupation visa), the adjustment applicant may not work in the United States until the Employment Authorization Document is approved. This can take a few months (they had been very slow but we now seeing approvals in about 6 months or less). If the applicant has more than 180 days of unauthorized employment the adjustment application can be denied. Also, if the applicant leaves the United States before obtaining the Advance Parole travel permit, Immigration will consider the adjustment application abandoned and will deny it, and then the case has to be moved to a consular post abroad to finish processing which will cause delay. The good news is that after the adjustment application is filed and receipted derivative children under 21 should be able to attend public school in the U.S., depending on the school’s policy whether to accept a foreign student on Form I-485 pending status. Applicants should not enroll students in public schools on a visitor’s visas as that can create a bar to approval.

Concurrent adjustment of status was introduced for the first time on EB-5 cases by President Biden’s RIA signed March 15, 2022, and this is an excellent option for those who are already in the U.S. lawfully. For those outside of the United States, entering on a temporary visa such as a B-visitor’s visa or F-student visa is complicated due to issues of immigrant intent, which can lead to a misrepresentation, or visa fraud finding that creates a permanent bar to immigration benefits. The only dual intent visas are L-1 company transfer and H-1B specialty worker visas.

To understand preconceived intent or visa fraud, one must simply realize that if entering as a visitor one must be a visitor and not plan to file for a green card. If, however there are changed circumstances more than 90 days after entry, the State Department will be open to accepting an explanation of how the applicant came to change their minds. USCIS creates a 60-day presentation but conduct within the 60- or 90-day period that is inconsistent can lead to a visa fraud finding.

If for example one entered for a family vacation and to travel and check out schools for example, that is a permissible visitor intent. If, after arriving they call their lawyer who explains this new option, and based on that call, they change their minds more than 90 days after entry, and only then sever ties with the home country, such as quit their jobs or sell their home, then there may not be visa fraud. Also note persons entering under ESTA or visa waivers cannot file an adjustment. They must have a B-visa entry to even be potentially eligible.

It's incredibly important to be clear on the rules because entering on a nonimmigrant visa with a plan to file an adjustment after entry, could lead to a lifetime bar. The best way to achieve both short-term and long-term goals is to enter on an L-1 company transfer or H-1B specialty occupation visa, which are “dual intent” visas, but there are separate qualifications for these nonimmigrant visas than for EB-5.

If an applicant for an EB-5 concurrent adjustment were to enter on a visitor’s visa or a student visa, they must have a clear plan to enter, visit and go home at the time of entry must be nonimmigrant. Only with changed circumstances is the filing of a Form I-485 adjustment possible, and it should never be done within 90 days. Be ready for USCIS to question why you changed your mind after entry and filed for a green card.

Please note – WR Immigration does not, and cannot, advise a client to enter the United States on a B1/B2 visitor visa and then file I-485 to adjust status to a green card. This is considered visa fraud. WR Immigration would accept a visitor case if the person entered with a plan to return and only after entering learned about this new option and only decided to change their mind at least 90 days after entry. USCIS is slightly more generous at 60 days but note if applicant later has to apply for a visa at the Consulate, they subject to the longer 90-day rule. See the excerpt below from the Foreign Affairs Manual:

9 FAM 302.9-4(B)(3) (U) Interpretation of the Term Misrepresentation

(CT:VISA-1597; 08-02-2022)

g. (U) Activities that May Indicate a Possible Violation of Status or Conduct Inconsistent with Status

  1. (U) In General:

    1. (U) In determining whether a misrepresentation has been made, some questions may arise from cases involving individuals in the United States who have performed activities that are inconsistent with representations they made to consular officers or DHS officers when applying for admission to the United States, for a visa, or for another immigration benefit. Such cases occur most frequently with respect to individuals who, after being admitted to the United States, engage in activities for which a change of status or an adjustment of status would be required, without the benefit of such a change or adjustment of status.(emphasis added)

    2. (U) The fact that an individual's subsequent actions are inconsistent with what was represented at the time of visa application, admission to the United States, or in a filing for another type of benefit does not automatically mean that their intentions were misrepresented at the time of either the visa application or application for admission to the United States. To conclude there was a misrepresentation, you must make a finding that there is direct or circumstantial evidence sufficient to meet the "reason to believe” standard, which requires more than mere suspicion and is akin to probable cause. See In re Jose Manuel Isabel Diaz (BIA Dec. 30, 2013). If the activities happened within 90 days after the visa application and/or application for admission to the United States (typically you are looking at activities after entry into the United States), see paragraph (2) below regarding the 90-day rule.

  2. (U) Inconsistent Conduct Within 90 Days of Admission to the United States:

    1. (U) If an individual engages in conduct inconsistent with their nonimmigrant status within 90 days of visa application or admission to the United States, as described in subparagraph (2)(b) below, you may presume that the applicant made a willful misrepresentation (i.e., you may presume that the applicant's representations about engaging in only status-compliant activity were willful misrepresentations of their true intentions in seeking a visa or admission to the United States). You must provide the applicant with the opportunity to rebut the presumption of misrepresentation by verbally presenting the applicant with your factual findings as to why you believe they are ineligible 6C1.

    2. (U) Inconsistent Conduct: For purposes of applying the 90-day rule, conduct that violates or is otherwise inconsistent with an applicant’s nonimmigrant status depends on the nonimmigrant status the applicant has/had and the activities of the applicant in such status, including, but not limited to:

      1. (U) Engaging in unauthorized employment on B1/B2 nonimmigrant status. Certain activities may not constitute unauthorized employment, such as those permissible under 9 FAM 402.2-5(E), and you should clarify an applicant's employment activities when make a 6C1 finding under the 90-day rule. Additionally, when a noncitizen has been admitted on a nonimmigrant status other than B1/B2 and is engaging in activities consistent with that status (e.g., an F1 nonimmigrant attending a university), engaging in employment that is not authorized incident to status would not be sufficient to justify a presumption of misrepresentation;

      2. (U) Enrolling in a course of study, if such study is not authorized for that nonimmigrant classification (e.g., B1/B2 status);

      3. (U) A nonimmigrant in B status, marrying a United States citizen or LPR and taking up residence in the United States. To establish that an applicant took up residence in the United States before/after marrying a U.S. citizen or LPR, you may consider whether the applicant signed a long-term lease or obtained a mortgage, bills in the applicant’s name, whether the applicant obtained a local driver’s license, and any other evidence that may support a finding that the applicant took up residence in the United States); or

      4. (U) Undertaking any other activity for which a change of status (NIV to NIV) or an adjustment of status (NIV to IV) would be required, without the benefit of such a change or adjustment. Simply filing for a change of status or adjustment of status is not in itself sufficient to support a presumption of misrepresentation under the 90-day rule; the individual must also engage in conduct inconsistent with authorized status without the benefit of such a change of status.

  3. (U) Inconsistent Conduct After 90 Days: If an individual violates or engages in conduct inconsistent with their nonimmigrant status more than 90 days after admission to the United States, no automatic presumption of willful misrepresentation arises. If you determine that the applicant misrepresented their purpose of travel at the time of the visa application or application for admission, you should apply a traditional 6C1 analysis. See 9 FAM 302.9-4(B)(1)above.

h. (U) Rebuttal Burden is on the Applicant: The burden of proof falls on the applicant to rebut your finding of a material misrepresentation based on a violation of status/inconsistent conduct within 90 days of admission. The applicant must establish to your satisfaction that their true intent at the time of the presumptive willful misrepresentation was consistent with their nonimmigrant status. You must provide the applicant the opportunity to rebut by verbally presenting the applicant with your factual findings.

  1. (U) If you are satisfied that the applicant did not make a material misrepresentation, and they are otherwise eligible, process the case to conclusion.

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