What concurrent filing is
Concurrent filing means that an eligible EB-5 investor files Form I-485, the application to adjust status, at the same time as Form I-526E (or while the I-526E is pending) rather than waiting for the I-526E to be approved. The EB-5 Reform and Integrity Act of 2022 (RIA), effective March 15, 2022, allowed this for the first time, and it is the most significant practical change the RIA brought for investors already in the United States.
Before the RIA, an EB-5 investor had to wait for I-526 approval and then, once a visa number was available, file the I-485 or proceed through consular processing. I-526 adjudication often took a long time, during which the investor had to remain in the United States on some other nonimmigrant status (F-1, H-1B, L-1, E-2, and so on), and a break in that status could force departure. Concurrent filing turns that waiting period into a pending-application period with work and travel authorization, a substantive improvement for investors living and working in the United States.
Eligibility
Concurrent filing is not open to every investor. The applicant must meet all of the following conditions:
- Physically present in the United States. The I-485 is a domestic adjustment process and must be filed from within the country. Investors abroad still proceed through the DS-260 consular process.
- In lawful status. The applicant should hold valid nonimmigrant status at the time of filing, without having fallen out of status or worked without authorization. Employment-based adjustment applies strict requirements on maintenance of status, and investors should review their status history with counsel.
- A visa number is available. Under the Department of State Visa Bulletin, the applicant’s country of birth must be current for filing in the relevant EB-5 category. USCIS announces each month whether Chart A (Final Action Dates) or Chart B (Dates for Filing) applies. For investors in the reserved categories (rural, high-unemployment, infrastructure), the bulletin has generally shown Current, subject to the latest bulletin; in the unreserved category, investors born in mainland China and India generally cannot file concurrently.
- An I-526E has been filed. The I-485 may be filed together with the I-526E or submitted later while the I-526E is pending.
For the relationship between reserved categories and the bulletin, see The Three Reserved Visa Categories.
Practical benefits
| Benefit | Explanation |
|---|---|
| Employment authorization (EAD) | Form I-765 filed with the I-485; once approved, the applicant may work for any employer or be self-employed, free of the limits of the prior nonimmigrant status |
| Advance parole | Form I-131 filed with the I-485; once approved, the applicant may travel abroad and return while the I-485 is pending |
| Authorized stay while pending | While the I-485 is pending the applicant is in a period of authorized stay and does not accrue unlawful presence when the prior nonimmigrant status expires |
| Family members | The spouse and unmarried children under 21 may file their own I-485, I-765, and I-131 as derivatives at the same time |
| No need to maintain prior status | Under USCIS policy, an applicant generally need not continue to maintain the prior nonimmigrant status after the I-485 is filed; in practice, many attorneys recommend maintaining it where feasible as a fallback |
The last point calls for caution. Authorized stay during the pendency of the I-485 depends on the I-485 itself. If the I-485 is denied, for example because the I-526E is denied, an applicant who no longer holds any other valid status faces immediate departure. Whether to give up the prior status is a judgment to be made in light of individual circumstances and legal advice.
Caveats
Travel. If the applicant leaves the United States before advance parole is approved, the I-485 is generally treated as abandoned. The main exception applies to holders of certain statuses such as H-1B or L-1 who remain in that status upon return. Even with advance parole, admission remains at the discretion of the inspecting officer, and applicants should consult counsel before traveling.
Status gaps. Employment-based adjustment imposes strict requirements on status at the time of filing. An investor who has overstayed, worked without authorization, or has other status defects before filing may be ineligible for adjustment. These issues should be fully assessed before filing rather than addressed afterward.
Children’s ages. Under the Child Status Protection Act (CSPA), a child’s age is frozen during the adjudication of the I-526E; once a visa number becomes available, the child must “seek to acquire” status within one year. Filing the I-485 concurrently is itself an act of seeking to acquire and helps lock in CSPA protection. Where a child is close to 21 at the time of the I-526E filing, the CSPA calculation should nonetheless be reviewed with counsel.
Retrogression. If the applicant’s category retrogresses while the I-485 is pending, the I-485 is not denied, but USCIS cannot approve it until a number becomes available again. The EAD and advance parole may be renewed in the meantime.
I-526E processing order. USCIS prioritizes I-526E petitions in rural set-aside projects and otherwise processes by visa availability and filing order. Filing the I-485 concurrently does not change the order in which the I-526E is adjudicated.
Fees. Under the current USCIS fee schedule, the I-485 (adult) is $1,440, the I-765 filed with the I-485 is $260, and the I-131 is $630; the I-526E is $3,675 (rising to $7,850 on November 30, 2026) plus a $1,000 EB-5 Integrity Fund fee. Fees change with policy, and the current USCIS fee schedule governs.
Process steps
- Confirm eligibility. Check physical presence, status history, the Visa Bulletin for the country of birth in the relevant category, and which chart USCIS is using this month.
- Prepare the I-526E. Complete the project subscription, source-of-funds documentation, and confirmation of the regional center’s Form I-956F status. An investor may file the I-526E while the I-956F is pending, but adjudication depends on I-956F approval.
- Prepare the I-485 package. This includes the I-485 itself, Form I-765 for the EAD, Form I-131 for advance parole, and supporting documents such as the Form I-693 medical examination. Each family member files a separate package.
- File concurrently or later. Submit the I-485 together with the I-526E, or file it separately while the I-526E is pending, attaching the I-526E receipt notice.
- Receipt and biometrics. After the I-485 receipt is issued, attend the biometrics appointment as scheduled.
- Receive the EAD and advance parole. Once approved, the applicant may work and travel.
- Await adjudication. When the I-526E is approved and a visa number is available, USCIS approves the I-485 and the applicant becomes a conditional permanent resident.
- Subsequent steps. File Form I-829 within the 90 days before the second anniversary of conditional residence. Upon filing, the receipt notice automatically extends conditional residence for 48 months.
Concurrent filing involves coordinating several applications and making judgments about status, and should be undertaken with experienced immigration counsel.
Key takeaways
- The RIA allows investors who are in the United States in lawful status with a visa number available to file the I-485 while the I-526E is pending.
- The I-485 may be accompanied by Form I-765 for work authorization and Form I-131 for advance parole, allowing lawful work and travel during the wait.
- Under USCIS policy the prior status generally need not be maintained after filing, but a denied I-485 removes the basis for stay, so giving up the prior status requires careful judgment.
- Departure before advance parole is approved generally abandons the I-485; status defects before filing can affect eligibility.
- Concurrent I-485 filing helps lock in CSPA protection for children; those approaching 21 should seek advice early.
- Fees are governed by the current USCIS fee schedule; visa availability is governed by the Visa Bulletin and USCIS’s monthly chart notice.