EB-5 Concurrent Filing: What It Gives You, and Who Can Actually Use It

Reviewed by: Beth Persky, Esq.

Introduction

EB-5 concurrent filing lets an investor who is already in the United States file the green card application (Form I-485, Adjustment of Status) at the same time as the investor petition (Form I-526E), or while the I-526E is pending, instead of waiting years for the petition to be approved first. Filing the I-485 is what opens the door to requesting work authorization and travel permission during the wait. The gate that controls when the I-485 can be filed is visa number availability under the chart USCIS designates for that month, and for investors born in backlogged countries that turns heavily on the project category. Adjustment of status also has its own eligibility requirements beyond visa availability, covered below.

For an investor living in the United States on a temporary visa, the years between filing and green card approval are the part that shapes daily life: an employer-tied work permission, periodic extension filings, and visa stamping trips abroad. Concurrent filing is the provision that determines whether those burdens continue through the wait.

What concurrent filing means?

Under the standard sequence, an investor files Form I-526E and then waits. Only once that petition is approved, and a visa number is available, can the next stage begin. Before the EB-5 Reform and Integrity Act of 2022 added section 245(n) to the Immigration and Nationality Act, an investor could not file Form I-485 during the period the investor petition was pending, so no I-485-based work or travel authorization was available during that waiting period. (Once a petition was approved and an I-485 properly filed, those requests were available, as with other employment-based categories.)

Section 245(n) changed the sequence. It applies to a petition for classification under INA 203(b)(5), which covers both the Form I-526E filed by regional center investors and the Form I-526 filed by standalone investors; this article refers to the I-526E because that is the form used with regional center projects, where set-aside categories arise in practice. An investor already in the United States may file Form I-485 at the same time as the investor petition, or while it is pending, provided two things are true: a visa number is available under the chart USCIS designates for adjustment filings that month, and the investor meets the ordinary Adjustment of Status eligibility requirements under INA 245, including admission or parole, admissibility, and the adjustment bars discussed below. Filing the I-485 is what makes the interim benefits possible, because those benefits attach to the pending adjustment application rather than to the investor petition.

The three benefits that matter most

• Authorized stay while the application is pending

A properly filed, pending Form I-485 generally stops the accrual of unlawful presence while it is processed. That protection is real but narrow: it does not confer lawful nonimmigrant status, does not authorize employment, does not cure violations that occurred before filing, and does not necessarily prevent removal proceedings. It is an effect of the pending application itself, not a separately requested benefit.

For an investor whose current position depends on periodic extension filings, that reduces one specific risk: the wait no longer rests solely on re-establishing a temporary status every one to three years. It does not replace the protection of maintaining that status, and the safer course in nearly every case is to keep the underlying status alive.

• Work authorization for any employer

Filing the I-485 makes the applicant eligible to request an Employment Authorization Document on Form I-765. A pending I-485 does not itself authorize employment; until the EAD is approved, the applicant must have some other basis to work, such as valid H-1B status. An adjustment-based EAD, if granted, is not tied to a specific employer and generally permits self-employment as well, within its validity dates and subject to any generally applicable legal or professional licensing requirements.

For an investor currently on an employer-sponsored visa such as the H-1B, this is the benefit that changes the most. Employer-sponsored status ties the ability to work, and in practice the ability to remain, to one company. An approved EAD loosens that dependency: the holder can change jobs or start a business without needing a new employer sponsorship. The interaction with H-1B status needs care, though. H-1B status depends on continuing to comply with its terms, including working for the petitioning employer in the approved position. Merely receiving an EAD does not end H-1B status, but leaving the H-1B employment to work for a different employer on the EAD, or stopping work altogether, can mean the person is no longer maintaining H-1B status, even though the person may generally remain in the United States while the I-485 is pending. Whether and when that happens is case-specific and should be assessed before making the switch, not after.

The EAD is granted for a fixed period and an applicant relying on it must renew it until the green card is issued. On December 4, 2025, USCIS reduced the maximum validity period of initial and renewal adjustment-based EADs from five years to 18 months. The change does not shorten employment authorization already issued. Renewal planning matters more under the shorter validity period: the rules on whether a timely filed renewal automatically extends an expiring EAD have changed in recent rulemaking, so the current automatic-extension position should be confirmed on the USCIS Form I-765 page before relying on it, and filing renewals well before expiration is the safer course.

As for cost, under the USCIS fee schedule (Form G-1055) in effect at the time of writing, Form I-765 carries a $260 fee and Form I-131 a $630 fee where the underlying Form I-485 was filed with a fee on or after April 1, 2024 and remains pending. Where the qualifying pending I-485 was filed with a fee from July 30, 2007 through March 31, 2024, USCIS reports no separate fee for these requests. Fees change, so check the live USCIS fee pages immediately before filing.

•  Permission to travel while the application is pending

Filing the I-485 also makes the applicant eligible to request advance parole on Form I-131. Advance parole is a travel document that allows the holder to appear at a U.S. port of entry after international travel and request parole back into the United States without first obtaining or renewing a visa. It does not guarantee readmission: return still depends on inspection and a discretionary grant of parole at the port of entry.

For investors who travel regularly for business or family reasons, this removes the need for consular visa appointments abroad during a long process. Three cautions apply. First, departing without advance parole generally results in abandonment of a pending I-485, although the regulations (8 CFR 245.2(a)(4)(ii)) contain exceptions for certain applicants maintaining H or L status, and for certain K and V nonimmigrants, who may travel without advance parole if the applicable requirements are met; whether an exception applies should be confirmed before any trip. Second, there are circumstances in which travel affects the application even with advance parole in hand. Third, a 2026 Board of Immigration Appeals decision changed the unlawful presence analysis for advance parole travel.

The Board of Immigration Appeals held in Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026) that leaving the United States on advance parole counts as a departure for purposes of the unlawful presence bars in INA 212(a)(9)(B), departing from the prior rule under which advance parole travel was not treated as a departure for this purpose. The practical consequence is that a person who accrued more than 180 days of unlawful presence and then travels, even with a valid advance parole document, can trigger the three-year bar, and a person who accrued one year or more of unlawful presence can trigger the ten-year bar, and can be found inadmissible when seeking to return. A pending, properly filed I-485 generally stops unlawful presence from accruing going forward, but it does not erase unlawful presence accrued before filing. Any applicant with any period of possible unlawful presence should have counsel assess that history before booking international travel, regardless of whether an advance parole document has been approved. The decision and any implementing guidance should be confirmed against the published decision before being relied on.

Who is eligible?

Concurrent filing is available to an investor who meets all of the following. Adjustment eligibility is a case-specific legal analysis, and this list is a starting framework, not a substitute for it.

• Physically present in the United States at the time of filing.
• Eligible to adjust status under INA 245(a): inspected and admitted or paroled, admissible to the United States (or eligible for a waiver), and not subject to an applicable adjustment bar under INA 245(c). For employment-based applicants, INA 245(k) can excuse specified failures to maintain lawful status, unauthorized employment, and violations of the terms of admission, where those violations in the aggregate do not exceed 180 days during the period following the applicant’s most recent lawful admission; it does not excuse every kind of status or admissibility problem. INA 245(i) can provide a separate route for some grandfathered applicants. Which provisions apply is a facts-driven analysis under INA 245(a), 245(c), 245(k), and, where applicable, 245(i).
• Filing in an EB-5 category and country of chargeability in which the investor’s priority date is current (or the category is marked current) under the chart USCIS designates for adjustment filings that month. USCIS announces the designated chart monthly; it may be the Dates for Filing chart or the Final Action Dates chart, and the designation can change from month to month.
• Pursuing adjustment of status rather than consular processing.

Two mechanics matter throughout. First, filing eligibility and approval eligibility use different charts. USCIS may permit filing under the Dates for Filing chart in a given month, but the I-485 cannot be approved unless a visa is available under the Final Action Dates chart at the time of final adjudication. Second, filing timing is measured by USCIS receipt of a properly completed application, not by mailing date, so a package sent near the end of an open month can miss the window if the designated chart changes before receipt. Confirm the current filing location and delivery rules from the Form I-485 instructions before filing.

An investor outside the United States cannot use concurrent filing and would pursue consular processing once the petition is approved and a number is available.

Why does the project category matter so much?

For investors born in backlogged countries, the project category is the biggest visa-availability variable they can control at the outset, and it is worth understanding before a project is selected. It is not the only factor: country of chargeability (generally the country of birth, not citizenship), the investor’s priority date, the chart USCIS designates each month, Visa Bulletin movement, and cross-chargeability through a spouse born elsewhere all affect the result.

Cross-chargeability deserves specific attention for an investor whose spouse was born in a non-backlogged country. Under INA 202(b)(2), an immigrant visa may in some cases be charged to the country of birth of the investor’s spouse where the spouse is accompanying or following to join, and that country may be current even when the investor’s own country of chargeability is not. USCIS’s EB-5 Questions and Answers page, reported as last reviewed or updated April 20, 2026, states that an investor eligible to charge the immigrant visa to a country other than the investor’s own country of birth should email the Investor Program Office, identify the foreign state of cross-chargeability and the basis for it, and USCIS will consider visa availability for that alternate country when deciding whether to assign the Form I-526E petition for adjudication. The live page and exact instruction should be confirmed before relying on this procedure, and investors who may qualify should raise cross-chargeability proactively rather than assume USCIS will apply it on its own.

The 2022 statute reserved a share of annual EB-5 visas for three set-aside categories: rural projects, high unemployment area projects, and infrastructure projects. Everything else is unreserved.

The September 2026 visa bulletin shows EB-5 unreserved as current for all countries except China and India, and the set-aside categories as current for all countries, including China and India. These positions change monthly, fiscal-year unavailability can reset when the new fiscal year begins on October 1, and the current Bulletin and USCIS chart designation should always be checked before relying on any stated position, including this one.

Two investors born in the same country, investing the same amount on the same day, can therefore end up in different positions. The one whose project sits in a set-aside category may be able to file the I-485 immediately and request work and travel authorization. The one in an unreserved project cannot file unless the applicable chart makes that investor’s priority date current (or the category current) and the investor is otherwise eligible, which for an investor chargeable to India or China in the unreserved category can mean years without any of the three benefits above.

What concurrent filing does not do?

Here is what the provision does not provide.

• It does not create a right to faster petition processing. Concurrent filing does not establish any statutory right to expedited adjudication of the I-526E.
• It does not insulate you from retrogression. If a category retrogresses after filing, an I-485 that was properly filed under the chart USCIS designated at the time remains pending, and interim benefits already granted are not automatically withdrawn. But the application cannot be approved until a visa is available under the Final Action Dates chart at final adjudication.
• It does not create a visa number. Availability is governed by the annual and per-country limits, not by when an application was filed.
• It does not guarantee approval of anything. The petition, the adjustment application, and each interim request are decided on their own merits, and adjustment of status is a discretionary benefit.
• It does not extend benefits automatically to family members. The investor’s eligible spouse and children each file their own Form I-485, and each must file separate Forms I-765 and I-131, with the applicable fees and evidence, to request their own work and travel authorization.
• It does not remove the conditions on residence. Approval leads to conditional permanent residence. A further petition, Form I-829,  must be filed during the 90-day period immediately before the second anniversary of obtaining conditional permanent resident status to remove the conditions; USCIS may, in its discretion, excuse a late filing for good cause and extenuating circumstances shown in a written explanation.

Discretion and the 2026 Policy Environment

Adjustment of status has always been a discretionary benefit: even an applicant who meets every statutory requirement must also merit a favorable exercise of discretion, weighed in the totality of the circumstances. That principle is set out in the USCIS Policy Manual (Volume 7).

In May 2026, USCIS, issued a policy memorandum, PM-602-0199, describing adjustment of status under section 245 as a discretionary form of relief and a matter of administrative grace rather than a routine procedural stepRelated adjudication policies issued in the same period were reported to have been challenged and partly vacated in federal court in mid-2026.

Nothing in these developments repeals section 245(n), eliminates adjustment of status, or bars EB-5 investors from filing the I-485 while the petition is pending where a visa is available. Concurrent filing remains available.  Because adjustment is discretionary, the sound approach, independent of any single memorandum, is to build the adjustment application as a discretionary submission that affirmatively presents the applicant’s equities and immigration history, to keep a valid nonimmigrant status alive as a fallback where possible, and to understand what consular processing would look like if the I-485 were denied.

Who can use concurrent filing?

Visa Bulletin positions change monthly, so the middle rows in particular should be checked against the current Bulletin and the chart USCIS designates for that month rather than assumed.

FAQ

• Who can file the I-485 at the same time as the I-526E?

  An investor who is physically present in the United States, was inspected and admitted or paroled, is not subject to an applicable adjustment bar (or qualifies for an exception such as INA 245(k)), and whose priority date is current, or whose category is marked current, under the chart USCIS designates for adjustment filings that month. The same concurrent-filing rule applies to standalone investors filing Form I-526.

• Does concurrent filing speed up the green card?

  It does not create any right to faster adjudication of the investor petition. What it can do is open access to work and travel authorization requests during the wait, and allow the adjustment stage to run in parallel rather than only after petition approval.

• Does concurrent filing protect me if visa dates retrogress?

  Partly, and the protection is narrower than sometimes described.An I-485 properly filed when the designated chart permitted it is not lost if the category retrogresses afterward, and interim benefits already granted are not automatically withdrawn. But the application cannot be approved unless a visa is available under the Final Action Dates chart at final adjudication, so filing does not remove the wait.

• How long is the EAD valid?

  On December 4, 2025, USCIS reduced the maximum validity of initial and renewal adjustment-based EADs from five years to 18 months. The change does not affect employment authorization already issued. An applicant relying on the EAD must renew it until the green card is issued, and because the automatic-extension rules for renewals have changed in recent rulemaking, the current renewal and extension position should be confirmed on the USCIS Form I-765 page, with renewals filed well before expiration.

• Can I file concurrently if I am from India or China?

  It depends on the category and your priority date. The set-aside categories have to date remained current for all countries of chargeability, so an investor in a rural, high unemployment, or infrastructure project may be able to file. The unreserved category has been backlogged for both countries; meaning some China-chargeable investors with earlier priority dates may still be able to file in a given month while others cannot.Chargeability is generally determined by country of birth, not citizenship, and cross-chargeability through an accompanying spouse born elsewhere can change the result. Check the current Bulletin before relying on any of this.

• Can my visa be charged to my spouse’s country of birth?

  In some cases, yes. Under INA 202(b)(2), an immigrant visa may be charged to the country of birth of a spouse who is accompanying or following to join. USCIS’s EB-5 Questions and Answers page instructs investors eligible for cross-chargeability to email the Investor Program Office, identifying  the foreign state of cross-chargeability and the basis for it, so USCIS can consider visa availability for that country when deciding whether to assign the I-526E petition for adjudication. Confirm the live page, and whether cross-chargeability applies to your family, before relying on it.

• What happens to my current status if I file?

  Filing an adjustment application does not automatically end an existing nonimmigrant status, but the interaction depends on which status is held and what the applicant does afterward (for example, leaving H-1B employment to work for a different employer on the EAD can mean the H-1B terms are no longer being met). Because adjustment is discretionary, keeping a valid underlying status alive where possible is a meaningful safeguard: a denied I-485 leaves an applicant without status if nothing else is in place. Work this through before filing rather than after.

• Can I travel while my application is pending?

  Travel generally requires advance parole, requested on Form I-131. Departing without it generally abandons a pending I-485, subject to regulatory exceptions for certain applicants maintaining H or L status and certain K and V nonimmigrants under 8 CFR 245.2(a)(4)(ii). Advance parole allows you to seek parole at the port of entry; it does not guarantee readmission. And under Matter of Delcarmen-Lara, 29 I&N Dec. 830 (BIA 2026), as reported by attorney review, departing on advance parole is a departure for purposes of the unlawful presence bars in INA 212(a)(9)(B): a person with more than 180 days of unlawful presence can face a three-year bar, and a person with one year or more can face a ten-year bar, on seeking to return. Confirm your unlawful presence history with counsel before booking any travel.

• Does travel on advance parole trigger the three-year or ten-year bar?

  It can now, per the 2026 Board of Immigration Appeals decision described above. Before Matter of Delcarmen-Lara, travel on advance parole was not treated as a departure for INA 212(a)(9)(B) purposes; under the decision as reported, it is. This matters only for applicants who accrued more than 180 days of unlawful presence: a pending, properly filed I-485 generally stops unlawful presence from accruing going forward, but it does not erase unlawful presence accrued before filing. Anyone with a gap or violation in their history should get a legal assessment before traveling, and the decision itself should be confirmed with counsel.

• Can my spouse and children file at the same time?

  The investor’s spouse and unmarried children under 21 who are in the United States may generally file their own adjustment applications alongside the principal, subject to the same visa-availability and eligibility conditions, and each family member who wants work or travel authorization files their own Forms I-765 and I-131. Derivative eligibility depends on the principal’s continuing eligibility. For a spouse, the marriage must exist when derivative eligibility is adjudicated, and derivatives may qualify as accompanying or following to join. Children must be unmarried and under 21 under the applicable rules, and the Child Status Protection Act can preserve a child’s eligibility in some cases through its age-calculation provisions. The precise rules for each family member should be confirmed before filing.

• What happens if the investor petition is later denied?

  A denied I-526E ordinarily removes the basis for the adjustment application, which would generally be denied as a result. Employment authorization and advance parole granted on the basis of that application may then be terminated under the applicable regulations.  Do not assume the printed expiration date on the card controls: once the underlying application is denied and the authorization is terminated, continued work is not authorized, and the exact termination event and effective date should be confirmed with counsel for the specific case. This is one reason the strength of the underlying petition matters as much as the timing of the filing.

• Did the 2026 policy changes end concurrent filing?

  No. Concurrent filing remains available and section 245(n) was not repealed. USCIS’s 2026 policy memorandum PM-602-0199  emphasizes that adjustment of status is a discretionary benefit, which raises the standard of preparation for the application rather than removing the option. The specifics of the memorandum and related litigation, should be confirmed with counsel, because the position has been changing.