EB-5 Adjustment of Status

Can an EB-5 investor file Form I-485 in the United States?

Standalone investors and regional center investors

Both types of investors may ultimately use Form I-485 if otherwise eligible to adjust status in the United States. The investor petition establishes the EB-5 immigrant classification; Form I-485 separately determines whether the applicant can become a permanent resident through adjustment.

Current EB-5 investment amounts

For qualifying petitions filed under the EB-5 Reform and Integrity Act framework, the current statutory minimum investment generally is $1,050,000. The reduced minimum generally is $800,000 for a qualifying investment in a targeted employment area or qualifying infrastructure project.

The required amount is determined under the law applicable to the investor's petition and investment. Older EB-5 petitions can be governed by different statutory amounts and rules, so an adjustment applicant should not assume that today's investment amount applies retroactively to an earlier petition.

Concurrent filing changed EB-5 adjustment practice

Before the 2022 legislation, an EB-5 investor generally could not file Form I-485 merely because the investor petition had been filed. The Reform and Integrity Act created statutory authority for an eligible investor with an immediately available visa to file adjustment concurrently with a Form I-526 or Form I-526E, or while the investor petition remains pending.

This can allow an investor who qualifies for adjustment to establish a pending Form I-485 much earlier in the immigrant-petition process.

See EB-5 Concurrent Filing for the filing rules in greater detail.

EB-5 priority dates and reserved visa categories

The investor's priority date generally comes from the proper filing of the qualifying EB-5 immigrant petition. That date is then compared with the Department of State Visa Bulletin.

The Reform and Integrity Act also created reserved EB-5 visa classifications for qualifying investments involving rural areas, high-unemployment areas, and infrastructure projects. The Visa Bulletin may therefore contain different EB-5 lines depending on the investor's classification and country of chargeability.

An investor should determine:

• The priority date shown or recognized for the EB-5 petition.
• The applicant's country of chargeability.
• Whether the petition qualifies for an applicable reserved category.
• Which Visa Bulletin chart USCIS permits adjustment applicants to use for filing that month.
• Whether the Final Action Date is current when USCIS is ready to approve the I-485.

See Priority Dates for Form I-485 and Which Visa Bulletin Chart Does USCIS Use?.

An EB-5 petition and Form I-485 answer different questions

Approval of Form I-526 or Form I-526E therefore does not guarantee approval of Form I-485. Conversely, a concurrently filed I-485 cannot be approved unless USCIS ultimately determines that the underlying investor petition supports the immigrant classification.

INA §245(k) now applies to qualifying EB-5 applicants

The Reform and Integrity Act amended the employment-based adjustment framework so that qualifying EB-5 applicants can potentially use INA §245(k).

Section 245(k) can make INA §245(c)(2), §245(c)(7), and §245(c)(8) inapplicable when the applicant satisfies the statute's requirements. The analysis generally focuses on covered violations after the relevant lawful admission and whether they exceed 180 days in the aggregate.

Potentially covered conduct includes:

• Failure to continuously maintain lawful immigration status.
• Unauthorized employment.
• Other violations of the terms and conditions of admission.

Admission or parole remains important

An EB-5 investor seeking ordinary adjustment under INA §245(a) must satisfy the threshold statutory entry requirement or another applicable adjustment provision. Filing Form I-526, Form I-526E, or Form I-485 does not retroactively create a lawful admission.

An applicant who entered without inspection, entered through a special program, has a complicated parole history, or has a prior removal order requires a separate adjustment analysis.

INA §245(k) itself also contains a lawful-admission requirement and should not be treated as a general cure for entry without inspection.

Employment authorization while the EB-5 I-485 is pending

A pending Form I-485 can provide a basis to apply for employment authorization under the adjustment-applicant category. The EB-5 investor petition itself does not grant employment authorization.

An investor should distinguish:

• The right to own or invest in a business.
• Active employment or services performed for a U.S. business.
• Employment authorized through existing nonimmigrant status.
• Employment authorized through an adjustment-based EAD.

This distinction is especially important where INA §245(k) is needed because unauthorized employment can become part of the statutory calculation.

Travel while an EB-5 I-485 is pending

International travel should be analyzed independently before departure. A pending I-485 does not itself authorize reentry into the United States, and a departure can have consequences involving abandonment rules, unlawful presence, prior removal history, inadmissibility, or the applicant's continuing nonimmigrant status.

An adjustment applicant considering advance parole should not assume that possession of a travel document eliminates every consequence of departure. The applicant's complete immigration and unlawful-presence history should be reviewed before travel.

Form I-485 Supplement J is not an EB-5 requirement

EB-5 adjustment is based on an investor petition rather than a job-offer-based Form I-140. Form I-485 Supplement J is therefore not the mechanism used to confirm EB-5 eligibility or change EB-5 projects.

Likewise, INA §204(j) job portability applies to qualifying first-, second-, and third-preference I-140 beneficiaries. It does not convert an EB-5 investor petition into a portable employment petition.

Changes affecting the EB-5 enterprise, investment, regional center, or project must instead be evaluated under the EB-5 petition rules.

Approval grants conditional permanent residence

An EB-5 investor who obtains permanent residence through the qualifying investment does not initially receive ordinary unconditional permanent residence. The investor becomes a conditional permanent resident under INA §216A.

The conditional period generally lasts two years. The investor must later pursue removal of conditions through Form I-829 and establish compliance with the applicable EB-5 requirements.

Derivative spouses and children

The investor's qualifying spouse and children may generally obtain derivative permanent residence under INA §203(d). If they obtain residence through the EB-5 principal, their residence is generally conditional as well.

Each derivative must independently establish adjustment eligibility and admissibility. Child Status Protection Act issues can also become important where the EB-5 category is backlogged or petition adjudication is lengthy.

See Visa Availability for Derivative Applicants and Child Status Protection Act and Form I-485.

Visa retrogression after filing

A properly filed EB-5 I-485 may remain pending if the applicable priority date later retrogresses. USCIS ordinarily cannot approve the application until a visa is again immediately available under the applicable final-action category.

Reserved and unreserved EB-5 categories can move differently, so the investor should continue monitoring the precise category supporting the pending adjustment application.

See Visa Retrogression After Filing Form I-485.

Evidence commonly reviewed in an EB-5 adjustment case

• Form I-526 or Form I-526E receipt or approval documentation.
• Evidence identifying the correct EB-5 classification and priority date.
• Visa Bulletin and USCIS filing-chart evidence where relevant.
• Passport, visa, I-94, and admission or parole documentation.
• Complete nonimmigrant-status history.
• Employment authorization history where INA §245(c) or §245(k) is relevant.
• Medical examination and vaccination documentation.
• Evidence addressing any applicable ground of inadmissibility.
• Marriage and birth records for derivative applicants.
• Evidence responding to any changes affecting the underlying EB-5 petition.

Common EB-5 adjustment problems

Primary authorities

Related INA245.com guides

Frequently asked questions