EB-5 Immigrant Investor Program: Q&A on "Dual Filing"
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, which effectively allocated additional visa slots for new investors. Most applicants filing for EB-5 immigrant investor status under the new policy can pursue Dual Filing in the U.S. to convert their nonimmigrant status to immigrant status.
Q: I’ve come across the term "EB-5 Dual Filing" in several places—what exactly does it mean?
A: Dual Filing refers to EB-5 applicants submitting Form I-526E (Immigrant Petition by Entrepreneur) and Form I-485 (Application to Register Permanent Residence or Adjust Status) simultaneously to U.S. Citizenship and Immigration Services (USCIS).
Q: What are the benefits of Dual Filing?
A: If Dual Filing is successfully completed, EB-5 immigrant investor applicants will have effectively converted their nonimmigrant status to immigrant status. They will no longer need to maintain or extend a nonimmigrant status to remain in the U.S.
Q: I’m still not quite clear. Could you provide some examples?
A: Here are a few scenarios:
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If you currently hold F-1 student status, you will no longer need to maintain your F-1 status after filing for Dual Filing.
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If you are an F-1 student who has graduated, you will not have to worry about finding a job within 90 days of graduation to maintain your post-completion OPT status after Dual Filing.
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If you have secured a job offer, you will no longer need to stress about winning the H-1B visa lottery after Dual Filing.
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If you are currently working in the U.S. with an H-1B visa, you will not be tied to an undesirable job or exploited by an unfair employer just to maintain your immigration status after Dual Filing.
Q: Is every EB-5 immigrant investor applicant eligible for Dual Filing?
A: No, not every applicant is eligible.
Q: Under what circumstances is Dual Filing permitted?
A: To qualify for Dual Filing, the applicant must:
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Be physically present in the U.S.;
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Hold a valid nonimmigrant status;
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Ensure that their nonimmigrant status has not expired or lapsed.
Q: In what circumstances is Dual Filing not permitted?
A: Dual Filing is not allowed in the following cases:
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The EB-5 investor is not physically present in the U.S. at the time of filing;
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The EB-5 investor is in the U.S. on a J-1 visa and is subject to the two-year foreign residence requirement, which has not yet been waived.
Q: If an EB-5 investor is currently outside the U.S. but is eager to pursue Dual Filing, what solutions are available?
A: The fastest approach is to enter the U.S. on a tourist visa and wait for 90 days before submitting the Dual Filing application.
Q: Why is a 90-day waiting period required? Can’t the Dual Filing application be submitted immediately after entry?
A: This is a regulatory requirement—immediate submission after entry is not allowed.
Q: My current immigration status is expiring soon. If I retain your law firm as my immigration attorneys, how quickly can you file my Dual Filing application?
A: We offer expedited processing for special cases, which may involve working overtime to meet tight deadlines. However, the exact timeline for filing depends on the specific details of your case. In practice, the most time-consuming steps right now are verifying the source of investment funds and completing the fund transfer process. If your fund source is straightforward and the currency exchange and transfer can be completed quickly, we will file your Dual Filing application as soon as possible.
Q: I filed my EB-5 immigrant investor application back in 2016. I’m still anxiously waiting for my visa priority date to become current, and my child is approaching the age of 21. Is there any way I can take advantage of Dual Filing to obtain immigration status?
A: You can either:
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Make a new investment of $800,000 and come to the U.S. in person; or
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If your child is a U.S. citizen, file a new EB-5 application on their behalf with an investment of $800,000.
Q: After completing Dual Filing, how soon can I achieve "immigration status freedom" in the U.S.?
A: If by "immigration status freedom" you mean no longer needing to maintain your existing nonimmigrant status, this freedom begins on the date USCIS officially accepts your Dual Filing application.
Q: After Dual Filing, how long will it take to receive my work authorization?
A: Approximately four months.
Q: After Dual Filing, how long will it take to receive my advance parole?
A: Approximately four months.
Q: Can I travel outside the U.S. right after submitting my Dual Filing application?
A: You will be able to travel in and out of the U.S. freely only after you receive your advance parole document.
Q: After Dual Filing, how long will it take to receive my green card?
A: It is currently impossible to determine the exact timeline, as no applicant who filed for EB-5 under the new policy has yet received a green card.
Q: How long do you expect the Dual Filing option to be available?
A: Since USCIS has not released official data on the current volume of EB-5 applications received, it is impossible to assess how many reserved visa slots have been used. However, given that the number of additional EB-5 visa slots created under the new policy is limited, we anticipate that the window for Dual Filing may be closed at any time.
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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