Consular Processing vs. Adjustment of Status: The EB-5 Investor’s Guide

The EB-5 program is a valuable opportunity for international investors seeking permanent residency in the United States. By investing in the U.S. economy, investors can secure a pathway to citizenship.

After receiving I-526E approval, investors have two primary options to obtain their conditional Green Card: consular processing or adjustment of status. The choice between these methods depends on the investor’s current location and visa status, each offering distinct processes and advantages. In this article, we will take a closer look at these differences.

Understanding EB-5 Consular Processing

Consular processing is typically pursued by investors who are outside the United States. This method involves several critical steps:

• Approval and Transfer: Once USCIS approves your I-526E petition, it is forwarded to the National Visa Center (NVC). The NVC then manages the next step of your application by ensuring all necessary documentation is collected.
• Documentation and Fees: If applicable, the NVC will request additional documents and payment of fees.
• Form DS-260: Investors must complete and submit Form DS-260 online. This immigrant visa application is essential for processing at a U.S. consulate or embassy in the investor’s home country.
• Consular Interview: A face-to-face interview at the consulate is mandatory. During this meeting, consular officers evaluate the investor’s eligibility and verify the information provided.
• Visa Issuance and Entry: Upon successful completion of the interview, the investor receives an immigrant visa, allowing them to travel to the U.S. and receive a conditional Green Card.Consular processing times can vary widely based on the specific consulate’s workload, local conditions, and staffing levels. Factors such as the volume of applications and the efficiency of the consulate can impact how quickly the process moves forward.

Understanding EB-5 Adjustment of Status

Adjustment of status is an option for investors already residing in the U.S. on a valid nonimmigrant visa. This process offers several conveniences and benefits:

• Form I-485 Filing: This form, when filed, allows investors to remain in the U.S. while awaiting their conditional Green Card. It eliminates the need to return home for visa processing, providing a smoother experience for those already in the country.
• Concurrent Filing Option: The EB-5 Reform and Integrity Act of 2022 introduced concurrent filing, enabling investors to submit Form I-485 alongside their I-526E petition. This change significantly reduces waiting periods, facilitating a more streamlined process and enabling faster access to residency benefits.
• EAD and Advance Parole:Investors can apply for an employment authorization document (EAD) and advance parole (AP). These permits allow them and their families to work, study, and travel while the Green Card application is pending. Eligible EB-5 investors can also file these concurrently, enjoying the benefits of an EB-5 Green Card before even obtaining one.

Eligibility Requirements for Adjustment of Status

To be eligible for adjustment of status, investors must meet specific criteria that ensure they comply with U.S. immigration laws:

• Presence in the U.S. on a Legal Visa: Investors need to be physically present in the U.S. on a valid nonimmigrant visa, such as H-1B, L-1, or others. This requirement ensures that the investor is legally allowed to adjust their status without leaving the country.
• Maintained Legal Status: It’s essential to have complied with all visa conditions and not have overstayed the authorized duration. Any violations could jeopardize the ability to adjust status.
• Visa Type Considerations: Dual-intent visas like H-1B and L-1 allow for the possibility of immigration, making the adjustment process more straightforward. Single-intent visas, such as F-1 and E-2, require investors to demonstrate non-immigrant intent, which can complicate the adjustment process. An experienced immigration attorney can guide investors through any immigrant intent issues that may arise.

Comparing Consular Processing and Adjustment of Status

Understanding the differences between consular processing and adjustment of status is crucial for making an informed choice. Each method has unique requirements and timelines:

Aspect	Consular Processing	Adjustment of Status
Location	Conducted outside the U.S.	Conducted within the U.S.
Filing	Sequential process	Concurrent filing possible
Interview Requirement	Mandatory consular interview	May require an interview
Processing Time	Typically longer	Typically shorter with concurrent filing
Work and Travel	Restricted until visa issuance	EAD and AP allow work and travel

Consular processing often involves longer wait times due to the need for a consular interview and the availability of appointments. Adjustment of status offers more flexibility and a potentially faster timeline, especially with the option for concurrent filing.

Investors targeting rural targeted employment areas (TEAs) might benefit from even faster adjudication due to priority processing.

How to Start Your EB-5 Green Card Journey

Embarking on the EB-5 journey involves strategic planning and careful decision-making. Selecting the right investment project and understanding the detailed application process are critical steps. Consulting with EB-5 specialists can offer invaluable insights and guidance, ensuring a smooth transition to U.S. permanent residency.

Investors should seek regional centers that emphasize transparency and compliance to minimize risks and enhance the likelihood of a successful application. By understanding the nuances of both consular processing and adjustment of status, investors can tailor their approach to align with their unique circumstances and goals.

For personalized guidance and to explore your options further, schedule a free consultation with EB5AN.