Consular Processing vs. Concurrent Filing: Understanding your Options

When pursuing U.S. permanent residency through the EB-5 Immigrant Investor Program, foreign nationals have two primary options for applying for their immigrant visa: Consular Processing and Concurrent Filing. Both routes ultimately lead to obtaining a green card, but they differ in terms of procedures, timelines, and requirements. Understanding the differences between these two options is crucial for EB-5 investors and their families in choosing the best path to U.S. residency.

In this article, we'll explore Consular Processing and Concurrent Filing for EB-5 applicants, comparing each process and highlighting the factors that might influence your decision.

What is Consular Processing?

Consular Processing refers to the procedure in which an EB-5 investor and their family members apply for an immigrant visa (green card) through a U.S. consulate or embassy located in their home country or another designated country. This process occurs after the I-526 Petition (the EB-5 investor petition) has been approved by U.S. Citizenship and Immigration Services (USCIS).

Here’s how the Consular Processing route works:

1. Approval of I-526 Petition: After submitting the EB-5 petition, USCIS reviews it, and if approved, the applicant receives the green light to proceed with consular processing.

2. Visa Interview: After I-526 approval, the applicant and their family members must apply for an immigrant visa at the U.S. consulate or embassy in their home country. This involves submitting required documentation, attending a visa interview, and undergoing background checks, medical exams, and biometric screenings.

3. Immigrant Visa Issuance: If the visa application is approved at the consular interview, the applicant and family members are issued immigrant visas. These visas allow them to enter the U.S.

4. Entry to the U.S. and Green Card Issuance: Upon entering the U.S. with their immigrant visa, the investor and their family receive conditional permanent residency. They will need to file the I-829 petition to remove conditions and obtain permanent residency after two years.

   
   

Pros of Consular Processing:

• Faster Processing Time: In some cases, consular processing can be quicker than adjusting status from within the U.S., especially if there is no backlog at the consulate.

• Global Reach: Consular processing allows EB-5 investors living abroad to apply from their home countries or other countries with U.S. embassies or consulates.

• No Need for U.S. Presence: Investors who are not residing in the U.S. can apply for their visa without needing to be physically present in the country. Investors have time to tie up loose ends in their home country - sell property, allow their children to finish the school year, move business assets, etc.

  
  

  

  
  

Cons of Consular Processing:

• Travel Considerations: If the applicant is in the U.S. on a temporary visa (e.g., tourist or student visa), they may have to leave the country and go through the consular processing procedure in their home country, which may involve significant travel and costs.

• Visa Backlog: Depending on the applicant’s country of origin, there may be a backlog of visa applications, which can cause delays in the process.

• Possible Delays: Administrative processing or delays at the consulate can extend the overall timeline for receiving a green card. Check the current wait times at your local consulate for more information.

  
  

What is Concurrent Filing?

Concurrent Filing allows EB-5 investors and their family members to submit both the I-526 Petition (for the EB-5 visa) and the I-485 Application to Adjust Status (to apply for permanent residency) at the same time. This process is available to individuals who are already in the United States on a valid non-immigrant visa (such as a tourist visa, student visa, or work visa).

Here’s how Concurrent Filing works:

1. Filing I-526 and I-485 Simultaneously: After submitting the EB-5 petition (I-526), investors can submit the adjustment of status application (I-485) to USCIS at the same time. This allows applicants to stay in the U.S. while awaiting approval.

2. Biometrics and Interview: Once the I-485 is filed, the investor and their family members will be required to attend biometrics appointments and, in some cases, an interview with USCIS to process the adjustment of status.

3. Approval and Green Card Issuance: If the I-526 is approved, and there are no issues with the I-485, USCIS will approve the application for a conditional green card, allowing the investor and their family to live and work in the U.S. while the investment creates jobs and fulfills program requirements.

4. Remove Conditions: After two years, the investor will need to file the I-829 petition to remove conditions on their permanent residency.

   
   

Pros of Concurrent Filing:

• Stay in the U.S.: The ability to stay in the U.S. while the green card process is pending can be a major benefit, especially for investors already residing in the U.S. on a temporary visa.

• Faster Path to Permanent Residency: Concurrent filing can expedite the process, as applicants can adjust their status without having to leave the U.S. or wait for an immigrant visa.

• Work and Travel Authorization: Once the I-485 is filed, investors may be eligible for employment authorization (EAD) and advance parole (travel permission), allowing them to work and travel while their application is pending.

  
  

Cons of Concurrent Filing:

• Non-Immigrant Status Requirement: To apply for concurrent filing, the investor must be in the U.S. on a valid non-immigrant status (e.g., B1/B2, F1, H1-B). Individuals who are not in the U.S. or have overstayed their visa cannot pursue this option.

• Processing Delays: While concurrent filing is faster for many applicants, it is not immune to delays. Backlogs, especially for individuals from countries with high demand for U.S. immigration, may lead to extended processing times.

• Adjustment of Status Denial: If the I-526 petition is denied, the I-485 adjustment of status application may also be denied. Investors may have to leave the U.S. and restart the process through consular processing.

  
  

Consular Processing vs. Concurrent Filing: Which Option is Right for You?

Both Consular Processing and Concurrent Filing have their own advantages and drawbacks, and the decision largely depends on your current circumstances, location, and the status of your immigration application.

Choose Consular Processing if:

• You are living outside the U.S. or are not on a valid non-immigrant status in the U.S.

• You are seeking to avoid the U.S. adjustment of status process and prefer to finalize your immigrant visa at a U.S. consulate or embassy in your home country.

• You want to take advantage of faster processing in certain cases where there are no backlogs.

• You are not yet ready to relocate to the United States.

  
  

Choose Concurrent Filing if:

• You are currently in the U.S. on a valid non-immigrant visa.

• You want to remain in the U.S. while your EB-5 application is pending.

• You need the ability to work or travel while awaiting your green card approval.

  
  

When deciding between Consular Processing and Concurrent Filing for your EB-5 application, it’s important to understand the implications of each option. While both routes lead to U.S. permanent residency, they come with distinct benefits, timing considerations, and requirements. Whether you are outside the U.S. or currently residing in the country on a temporary visa, carefully assessing your personal situation with the help of legal and immigration professionals will help you make an informed decision and choose the best path to U.S. residency.