For EB-5 investors already living in the United States, concurrent filing can provide an important pathway toward permanent residence while the underlying I-526E petition remains pending.
When eligible, an investor may file Form I-485, Application to Register Permanent Residence or Adjust Status, concurrently with Form I-526E. A pending adjustment application can also allow the investor and qualifying family members to apply for employment authorization and advance parole.
But there is an important distinction:
Filing Form I-485 does not, by itself, authorize international travel.
For many EB-5 investors, leaving the United States at the wrong time can result in USCIS treating the pending adjustment-of-status application as abandoned. The rules are particularly important for investors currently in the United States in E-2, F-1, TN or O-1 status.
Here is what EB-5 investors and their families should understand before making international travel plans.
Concurrent filing allows certain EB-5 investors who are already in the United States to file their Form I-485 adjustment-of-status application while their Form I-526E petition is still pending, provided an immigrant visa is immediately available and the applicant otherwise qualifies for adjustment of status.
This can be significant because an eligible investor may also submit:
These benefits can provide considerable flexibility to investors and qualifying dependent family members while the EB-5 case is pending.
However, there is an important misconception to avoid.
Submitting these applications does not immediately provide work or travel authorization. The applicable employment authorization or advance parole generally must first be approved by USCIS before the applicant relies upon it.
As a general rule, an applicant with a pending Form I-485 who leaves the United States without first obtaining advance parole may be considered by USCIS to have abandoned the adjustment application.
USCIS states that adjustment applicants generally abandon their applications when they depart the United States without advance parole, subject to limited regulatory exceptions.
For an EB-5 family, that can have serious consequences.
The investor may still have an underlying I-526E petition, but abandonment of the I-485 can disrupt the family's adjustment-of-status strategy and potentially require a different immigration process.
For this reason, EB-5 investors should distinguish between:
having a valid nonimmigrant visa in their passport
and
being authorized to depart the United States while a Form I-485 is pending without abandoning that application.
They are not necessarily the same thing.
Certain nonimmigrants receive greater flexibility under the adjustment-of-status regulations.
Qualifying H-1B and L-1 nonimmigrants may generally depart the United States and return in valid H or L status without advance parole while an I-485 remains pending, provided the applicable regulatory requirements continue to be satisfied.
The federal regulation specifically provides an abandonment exception for certain H and L nonimmigrants, among other limited classifications.
This makes H-1B and L-1 cases materially different from many other nonimmigrant categories.
Even for H and L visa holders, however, international travel should still be reviewed with immigration counsel. Visa validity, employment, status maintenance, dependent status and readmission documentation may all affect a particular case.
This is where EB-5 investors need to exercise particular caution.
E-2, F-1, TN and O-1 classifications are not included in the same regulatory advance-parole exception available to qualifying H and L nonimmigrants.
As a result, an applicant in one of these classifications who has filed Form I-485 should generally obtain advance parole before departing the United States, unless experienced immigration counsel determines that another applicable basis permits the travel.
This issue can be especially important because many EB-5 investors transition into the program after first living in the United States through another temporary immigration category.
E-2 investors deserve special attention because the E-2 visa is widely used by entrepreneurs and business owners who later consider EB-5 as a pathway to permanent residence.
An E-2 investor who concurrently files Form I-526E and Form I-485 should not assume that an otherwise valid E-2 visa in the passport can substitute for advance parole.
It generally cannot.
Unlike qualifying H-1B and L-1 nonimmigrants, E-2 investors are not included in the regulatory exception that permits certain adjustment applicants to depart and return in their existing status without abandoning Form I-485.
Accordingly, an E-2 investor with a pending adjustment application should generally not depart the United States until advance parole has been approved and remains valid for the intended travel, unless immigration counsel has specifically reviewed the circumstances and advised otherwise.
This becomes even more important when the investor is simultaneously changing the business circumstances supporting the E-2 visa.
For example, an investor may be:
In these circumstances, E-2 status, EB-5 filing strategy, adjustment of status and international travel should be considered together rather than as separate issues.
For E-2 investors pursuing EB-5, the safest practical rule is simple:
Do not treat a valid E-2 visa as a substitute for advance parole after filing Form I-485.
Receiving an approved advance parole document is an important step, but investors should understand what the document actually does.
Advance parole generally permits the holder to travel to a U.S. port of entry and request parole into the United States. It does not guarantee that the individual will be admitted or paroled.
U.S. Customs and Border Protection retains authority to inspect the traveler and make the admission or parole determination at the port of entry. USCIS similarly cautions that having an advance parole document does not guarantee that an individual will ultimately be paroled into the United States.
Investors should therefore ensure that their travel documents remain valid and discuss any unusual immigration, criminal, status or admissibility issues with counsel before leaving the country.
Another potentially costly misunderstanding is assuming that filing Form I-131 is enough.
It is not.
For applicants who require advance parole to preserve a pending I-485, the important point is generally that advance parole should be approved before departure.
A pending Form I-131 application is not the same as possessing approved advance parole.
An investor should therefore avoid scheduling international travel based solely on the fact that an I-131 has been submitted to USCIS.
Before any international trip, an EB-5 investor with a pending Form I-485 should confirm several points:
Concurrent filing can provide significant practical benefits to qualifying EB-5 investors already living in the United States.
It can allow investors to pursue adjustment of status without waiting for the I-526E petition to be approved before submitting Form I-485, and it can provide access to applications for employment authorization and advance parole.
But those benefits come with procedural rules that should be taken seriously.
A simple international trip taken without understanding the abandonment rules can have consequences for an otherwise carefully planned immigration strategy.
This is particularly relevant for E-2 investors transitioning to EB-5, because maintaining E-2 status, changing or selling the E-2 enterprise, filing for adjustment of status and traveling internationally can all intersect.
EB-5 concurrent filing can create valuable work and travel options, but filing Form I-485 does not automatically give an investor permission to leave and return to the United States.
Qualifying H-1B and L-1 holders may benefit from specific regulatory exceptions.
Investors in classifications including E-2, F-1, TN and O-1 generally should not depart the United States with a pending I-485 until advance parole has been approved, absent case-specific advice from qualified immigration counsel.
For E-2 investors in particular:
A valid E-2 visa should not be treated as a substitute for advance parole after an I-485 has been filed.
Before making any international travel plans following an EB-5 concurrent filing, investors should review their visa classification, adjustment-of-status status, advance parole documentation and travel timing with experienced U.S. immigration counsel.
Generally, you should not leave the United States while Form I-485 is pending unless you have approved advance parole or qualify for a specific regulatory exception. Departing without the required travel authorization can cause USCIS to treat the pending I-485 as abandoned.
In most cases, yes. E-2 investors are not included in the same travel exception available to certain H-1B and L-1 nonimmigrants. An E-2 investor with a pending I-485 should generally wait until advance parole has been approved before departing the United States, unless immigration counsel confirms that another exception applies.
A valid E-2 visa should not be treated as a substitute for advance parole once Form I-485 is pending.
Qualifying H-1B and L-1 visa holders may generally travel and return in H or L status without abandoning a pending I-485, provided they continue to meet the applicable requirements for that classification and have the documentation required for readmission.
Because individual circumstances can vary, investors should still confirm their travel plans with immigration counsel before departure.
No. Filing Form I-131 does not itself authorize international travel. For applicants who need advance parole to preserve a pending I-485, the advance parole document generally must be approved before they depart the United States.
Investors should not assume that a pending I-131 application provides travel protection.
No. Advance parole allows an individual to travel to a U.S. port of entry and request parole, but it does not guarantee reentry. U.S. Customs and Border Protection retains authority to inspect the traveler and determine whether parole will be granted.
Before traveling, EB-5 investors should confirm that their advance parole remains valid and discuss any status, admissibility, or immigration-history concerns with qualified U.S. immigration counsel.