EB-5 Immigrant Investor Program: Q&A on Consular Processing vs. Adjustment of Status in the U.S.
EB-5 Immigrant Investor Program: Q&A on Consular Processing vs. Adjustment of Status in the U.S.
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiao Xiang
The U.S. Department of State has just released the October 2023 Visa Bulletin. For EB-5 immigrant investor applicants born in Mainland China, the Final Action Dates (Chart A) have advanced to October 1, 2015, while the Dates for Filing Applications (Chart B) have seen a dramatic leap: jumping from January 1, 2016 (in the September 2023 Visa Bulletin) all the way to January 1, 2017! This significant forward movement is excellent news for EB-5 principal applicants currently residing in the U.S. Furthermore, our firm has recently received hundreds of fee bills issued by the National Visa Center (NVC)—a development that has left many of our clients feeling relieved, anxious, and uncertain about their next steps. To help our clients understand their options clearly, we have compiled the following Q&A summary.
Q: What is the difference between filing Form I-485 (Adjustment of Status) and going through consular processing?
A: Form I-485 (Adjustment of Status) and consular processing are two distinct pathways to obtain U.S. permanent residency (a green card) after an immigration petition is approved by U.S. Citizenship and Immigration Services (USCIS)—essentially, they are different roads leading to the same destination. However, there are several key differences between them:
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For example, Form I-485 applications are adjudicated by USCIS, a component of the U.S. Department of Homeland Security, whereas consular processing is handled by the NVC (an agency under the U.S. Department of State) and U.S. embassies/consulates abroad.
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In some cases, consular processing may result in receiving a green card more quickly, while filing Form I-485 in the U.S. could entail a longer waiting period.
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Additionally, the government filing fees for Form I-485 are higher than those required for consular processing.
Q: From your articles, I understand that I am now eligible to file Form I-485 in the U.S. You have just notified me that I have received my NVC fee bill. What should I do?
A: This is good news—it is time for you to make a choice. If you opt to file Form I-485 in the U.S., you may not be required to pay the NVC fees. Conversely, if you choose consular processing through the NVC, you may not need to prepare or file Form I-485 in the U.S.
Q: How should I decide which pathway to take?
A: Choosing between filing Form I-485 and pursuing consular processing involves considering multiple factors that will impact your green card application, including not only time and cost, but also the complexity and ease of obtaining a green card. A comprehensive evaluation of your personal circumstances (e.g., the length of time you are authorized to stay in the U.S.) and family situation (e.g., the ages and current status of your derivative applicants) is necessary to discuss the most suitable course of action for you.
Q: Can I pursue both Form I-485 (Adjustment of Status) and consular processing at the same time?
A: Yes, you can.
Q: If I pursue both Form I-485 and consular processing simultaneously, will I receive two green cards?
A: No, you will not.
Q: If I pursue both pathways and one of them is denied, can I continue my green card application through the other pathway?
A: If one pathway is ultimately denied, the other pathway will generally be foreclosed as well.
Q: I am currently in China—can I file Form I-485 (Adjustment of Status) in the U.S.?
A: Form I-485 can only be filed by applicants who are physically present in the U.S.
Q: I am currently in the U.S.—can I choose not to file Form I-485 here and instead pay the NVC fees to apply for an immigrant visa through a U.S. consulate?
A: Yes, you can. We recommend that you carefully consider your personal circumstances and weigh the advantages and disadvantages of each option.
Q: I paid the NVC fees two years ago. Now I am eligible to file Form I-485 in the U.S. What should I do?
A: The answer depends on your individual circumstances. Generally speaking, it is advisable to file Form I-485 in the U.S.
Q: If I file Form I-485, can I get a refund of the NVC fees I already paid?
A: Unfortunately, those fees are non-refundable.
Q: My child is currently studying in the U.S., and I am here on a tourist visa. I just received my NVC fee bill. Should I file Form I-485 in the U.S. or return to my home country for consular processing?
A: This decision requires consideration of multiple factors. For instance, after filing Form I-485, you must wait to receive your Advance Parole before leaving the U.S.—a process that typically takes 4 to 6 months from the date of application. You need to determine whether you can afford to wait that long. Additionally, you should take into account your child’s current age. If your child is approaching 21 years old, filing Form I-485 in the U.S. may be the better option. For children who are close to aging out or have already aged out, the applicability of the Child Status Protection Act (CSPA) varies on a case-by-case basis, and we recommend consulting an attorney promptly.
Q: My child is about to turn 21. If I file Form I-485 for them, will their age be locked in?
A: Yes. USCIS recognizes that filing Form I-485 triggers the age-locking provision under the CSPA.
Q: If my child files Form I-485 and later switches to consular processing, will their age still be considered locked in from the time of the I-485 filing?
A: Consulates may not recognize the age lock from a Form I-485 filing. This is because Form I-485 is submitted to USCIS, not the NVC.
Q: I paid the NVC fees two years ago, but the visa bulletin retrogressed afterward, and I am still waiting for my consular interview notice. I am now worried about my child aging out. Will my child age out?
A: If you paid the NVC fees on behalf of your child, their age has already been locked in. When you attend your consular interview in the future, your child will be able to obtain an immigrant visa and immigrate to the U.S. with you.
Q: Does this mean that paying the NVC fees locks in my child’s age?
A: Yes, it does.
Q: Which pathway leads to getting a green card faster—Form I-485 or consular processing?
A: The answer depends on your specific application circumstances. Generally speaking, if your priority date is current according to Chart A, your NVC documentation is complete, and you are waiting for a consular interview appointment, the process at the U.S. Consulate in Guangzhou may be faster—or it may be slower—in comparison to filing Form I-485.
Q: The NVC fee bill I just received only has my name on it—my spouse and child are not listed. Why is that?
A: We will contact the NVC on your behalf and notify you of the outcome. Please wait to pay the fees until you receive the fee bills for your spouse and child, so that your entire family can pay the fees together.
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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