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August 22 2018

EB-5 Adjustment of Status versus Obtaining an Immigrant Visa Via Consular Processing

After the EB-5 I-526 petition is granted, one residing in the United States (for example on an H-1B professional worker or F-1 student visa) has a choice of procedures to complete their immigration: 1) apply in the United States for "adjustment of status" or 2) apply for an immigrant visa (IV) abroad at the American consulate in their home country.

Many people have asked me what the differences are between adjustment of status and an IV. The end result is permanent resident status and the avenue to get there usually becomes irrelevant once one receives the green card.

The admissibility rules apply to both procedures, prohibiting immigration to those who have been convicted of certain crimes; was or is a terrorist; committed visa fraud; claimed to be a United States citizen; are likely to require public assistance, etc.  

But the rules for adjustment differ from those for an IV.  Adjustment of status applicants must also have been admitted and inspected by a CBP officer, maintained status, and have not engaged in unauthorized employment. There is no section 245(k) for EB-5 applicants allowing up to six months of status violations. Also, the government has the discretion of whether to grant adjustment, which does not exist for an IV.

The processing time for both avenues is roughly the same: about six months (although the processing time for the IV may take a bit longer). Also, one applying for an immigrant visa may face substantial delay for a security clearance called “administrative processing.” This is especially true for people from majority Muslim countries, but I have also seen administrative processing delays recently in India a few times and for one individual in New Zealand. 

Today EB-5 adjustment of status applicants are not interviewed, but this could change at any time. There is an interview for every applicant at the American consul for an IV.

These are the basics differences between these two procedures. There are other slight technical differences as well and of course individual cases may have unique circumstances that determine which procedure to follow. For more information, please contact me for a consultation.

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