Applying for EB-5 in the U.S.: I-485 Status Adjustment & Timeline

The Mechanism of Concurrent Filing and Status Adjustment

Prior to the RIA of 2022, EB-5 investors were required to wait for Form I-526E approval either outside the United States or within the country without interim work or travel authorizations. Under current regulations, the concurrent filing mechanism applies to holders of H-1B, L-1, F-1, O-1, E-2, and other valid nonimmigrant statuses.

The simultaneous filing package comprises three primary petition categories:

1. Form I-526E: The Regional Center investor petition confirming an investment of $800,000 in a Targeted Employment Area (TEA) or $1,050,000 in a standard infrastructure or urban project.
2. Form I-485: The application for adjustment of status to register lawful permanent residency within the U.S.
3. Forms I-765 and I-131: Applications for an Employment Authorization Document (EAD) and Advance Parole (AP) travel permission.

Submitting these forms together places the applicant in a legal "Period of Authorized Stay" from the date USCIS receives the application packet. This eliminates dependency on the expiration date of the original nonimmigrant visa. Filing Form I-765 grants a unrestricted work permit (EAD) within 3 to 6 months, while Advance Parole (Form I-131) takes 6 to 12 months, granting international travel rights without abandoning the pending I-485 application.

The 90-Day Rule and Nonimmigrant Visa Categories

Filing Form I-485 from within the U.S. requires strict adherence to the presumption of nonimmigrant intent rules (the 90-Day Rule). U.S. Citizenship and Immigration Services (USCIS) evaluates any status adjustment petition filed within the first 90 days of entry on a nonimmigrant visa (such as B1/B2 or F-1) as potential willful misrepresentation of original entry intent.

Application of the 90-Day Rule across specific visa types:

• Dual Intent Visas (H-1B, L-1): U.S. immigration law explicitly permits holders of these visas to maintain both temporary stay and permanent residency intent. H-1B and L-1 holders may file Form I-485 at any point following entry without violating status.
• Student Visas (F-1, OPT): Students and graduates on Optional Practical Training (OPT) must wait a minimum of 90 days from their last U.S. border entry before filing a concurrent I-526E/I-485 packet. Filing prior to 90 days risks petition denial and visa revocation.
• Visitor Visas (B1/B2): Submitting Form I-485 while on a tourist visa is legally permissible after completing a 90-day physical presence period following entry. The investor must demonstrate an absence of preconceived immigrant intent at the time of entry.

Processing times for Form I-526E range from 6 to 24 months for Rural TEA Projects—which receive priority processing under the RIA—and 24 to 36 months for Urban TEA Projects. Throughout the entire I-485 adjudication period, the investor remains lawfully present in the United States.

Financial Outlays, Tax Implications, and Expense Structure

Transitioning to an I-485 applicant status within the U.S. alters the investor's tax standing and requires upfront capital allocation to cover transaction and filing fees.

Mandatory fees and government assessments for concurrent filing include:

• Minimum Investment Capital: $800,000 (Rural / Urban TEA) or $1,050,000 (Non-TEA).
• Regional Center Administrative Fee: $50,000 – $80,000 (one-time project management fee).
• USCIS Filing Fee for Form I-526E: $11,160 (includes the mandatory $1,000 EB-5 Integrity Fund fee).
• USCIS Filing Fee for Form I-485: $1,440 per adult primary applicant and $950–$1,440 per qualifying dependent.
• Filing Fees for Forms I-765 and I-131: $260 (EAD) and $630 (Advance Parole) when filed concurrently.
• Immigration Attorney Legal Fees: $25,000 – $35,000 for Source of Funds structuring, petition preparation, and adjustment of status representation.

Filing Form I-485 directly impacts tax residence status. Once the application is submitted and physical presence exceeds 183 days under the Substantial Presence Test, the applicant becomes a U.S. tax resident.

Consequently, worldwide income (including foreign business dividends, capital gains, and real estate income) becomes subject to U.S. federal tax reporting via IRS Form 1040. Federal long-term capital gains rates range from 0% to 20%,alongside a 3.8% Net Investment Income Tax (NIIT) for incomes exceeding $200,000, plus applicable state income taxes (ranging from 0% in Florida and Texas up to 13.3% in California).

Comparative Process: Adjustment of Status vs. Consular Processing

The choice between adjusting status within the U.S. and applying abroad through consular channels depends on physical location, current visa class, and timing needs.

Process Parameter	Inside the U.S. (Adjustment of Status, I-485)	Outside the U.S. (Consular Processing, DS-260)
Physical Location During Processing	United States (Authorized Stay)	Home Country / Country of Residence
Interim Employment Authorization	Yes (EAD issued within 3–6 months)	No
International Travel Ability	Restricted until Advance Parole issuance	Full freedom until consular interview
90-Day Rule Risk	Applicable to B1/B2 and F-1 holders	Not applicable
Time to Work/Live Legally in U.S.	Immediate upon filing / 3–6 months for EAD	24–36 months (after visa issuance)
U.S. Tax Residency Trigger	Triggers upon I-485 filing & 183-day test	Triggers upon initial entry on EB-5 Visa

Concurrent Filing allows eligible foreign nationals already present in the U.S. to secure legal residence, open businesses,and obtain open-market work authorization within months, eliminating the need to depart the country or wait through overseas consular channels.