EB-5 Immigrant Investor Program: Who Is Eligible for Concurrent Filing of EB-5 Applications?
Who Is Eligible for Concurrent Filing of EB-5 Immigrant Investor Applications?
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
In 2022, the U.S. Congress enacted new legislation governing the EB-5 Immigrant Investor Program. This legislation effectively carved out additional visa slots for new investors, allowing them to take a shortcut and reside in the U.S. ahead of schedule!
While this approach is highly unfair to investors who filed EB-5 applications before 2022, it offers significant advantages to those submitting new EB-5 applications today.
The key benefit is that eligible applicants can pursue "Concurrent Filing" to obtain work authorization and travel documents, which are equivalent to a U.S. "conditional green card" (often referred to as a "Combo Card") .
So, who is eligible for Concurrent Filing of EB-5 applications?
I. Foreign Students Studying in U.S. Schools
This category includes foreign students holding F visas (academic students) and M visas (vocational students), covering middle school students, college undergraduates, master’s candidates, and doctoral students. Applications can be filed while they are enrolled in school. Also included are recent graduates—whether they have obtained Optional Practical Training (OPT) authorization, are still waiting for OPT approval, have not yet found a job, or are actively job hunting.
II. Foreign Nationals Working in the U.S.
This category covers a broad range of individuals, specifically divided into the following subcategories:
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Recent graduates participating in internships at U.S. companies under OPT status.
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College undergraduates, master’s candidates, and doctoral students who have secured full-time or part-time employment at U.S. companies through OPT.
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College undergraduates, master’s candidates, and doctoral students employed full-time or part-time at U.S. companies via OPT who were not selected in the H-1B visa lottery.
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Foreign employees working full-time or part-time at U.S. companies under H-1B visa/status.
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Foreign employees working full-time or part-time at U.S. companies under L-1A/L-1B visa/status.
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Foreign employees working full-time or part-time at U.S. companies under TN visa/status.
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Foreign employees working full-time or part-time at U.S. companies under E1, E2, or E3 visa/status.
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Foreign employees working full-time or part-time at U.S. companies under O visa/status.
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Foreign employees working full-time or part-time at U.S. companies under P visa/status.
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Foreign employees working full-time or part-time at U.S. companies under Q/R visa/status.
Many individuals work in the U.S. under J-1/J-2 visas. If a J-1/J-2 visa holder is subject to the two-year home-country physical presence requirement, they are ineligible for Concurrent Filing of EB-5 applications in the U.S. until they obtain a waiver of this requirement .
III. B-1/B-2 Visa Holders Visiting the U.S. for Tourism or Business
There is a legal restriction for this group: they cannot file an EB-5 application within 90 days of entering the U.S. on a B-1/B-2 visa. However, they may complete various preparatory steps for the EB-5 application, such as retaining an attorney, preparing a source of funds report, and conducting due diligence on projects and project sponsors.
Given the large number of individuals in this category and the complexity of their circumstances, B-1/B-2 visa holders interested in Concurrent Filing are strongly advised to consult a licensed U.S. attorney specializing in immigrant investor applications.
IV. "Aged-Out" Children of EB-5 Investors
This group is singled out because EB-5 applications filed before 2022 faced lengthy visa retrogression, resulting in numerous children aging out (exceeding the age limit) and being unable to immigrate to the U.S. with their parents’ applications.
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Children who have not yet aged out but are at risk of doing so while their parents’ EB-5 applications are pending may file a separate EB-5 application under the new law via Concurrent Filing if they are present in the U.S., eliminating concerns about their immigration status.
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Children who previously aged out of their parents’ EB-5 applications may also file a separate EB-5 application under the new law via Concurrent Filing if they are in the U.S. or enter using one of the visas mentioned above. This allows them to obtain work authorization and travel documents within a few months and reside legally in the U.S.
If you have circumstances not listed above but believe you are eligible for Concurrent Filing of an EB-5 application, please send an email to attorney@xielaw.com for a free consultation.
It is important to note that the validity and applicability of this document may be short-lived, as the window for Concurrent Filing is likely temporary. Once the additional EB-5 visa slots allocated by Congress are exhausted, the opportunity for Concurrent Filing will no longer exist .
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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