You’re probably wondering if you can stay in the U.S. once your EB-5 application is in motion. There’s no shortage of confusion around this. People mix up tourist visas, investor visas, and everything in between.
To make things clear, yes, you can stay in the U.S. while your EB-5 visa is processing. But you’ll need the right visa status that keeps you legally present. Overstaying or using the wrong visa can mess up your green card chances. And that’s the last thing you want after investing $800,000 or more.
You can’t just arrive on any visa and wait it out. The U.S. immigration system tracks visa type, stay duration, and your intent. If those don’t match, your stay might raise questions at any step, from the port of entry to form approval. However, you don’t need to worry. This blog breaks down legal ways to stay in the U.S. during EB-5 processing, so you avoid costly mistakes.
Visa Options for Staying Legally During EB-5 Processing
Tourist or short-term entry options like the B-1/B-2 visa or the Visa Waiver Program (VWP) seem convenient. But they come with serious limitations when your EB-5 is under review. Let’s break down each one:
B-1/B-2 Visitor Visa
This is for short stays, usually for tourism, business meetings, or visiting family. You’re allowed to stay for up to 6 months and can request a one-time extension using Form I-539. You may request one additional 6-month extension using Form I-539. But this visa is tricky for EB-5 applicants.
Once your Form I-526 is filed, the government knows you plan to immigrate. Meanwhile, B-1/B-2 visas require nonimmigrant intent. Using this visa while your EB-5 is active can raise red flags, especially if officers think you’re trying to live in the U.S. long-term without proper status.
Visa Waiver Program (VWP)
The VWP allows citizens of certain countries, like the U.K., Germany, and Japan, to enter without a visa for up to 90 days. You don’t need to visit a consulate, and it’s quick. Sounds good, right? Not really.
If you file an EB-5 while using VWP, traveling back and forth can look suspicious. CBP officers might deny your entry, even if you have valid documents. That’s because they see a mismatch between your “nonimmigrant” visit and “immigrant” intentions. Also, you can’t extend or change your status while on the VWP.
E-2 Investor Visa (For Treaty Countries Only)
If you’re from a treaty country like the U.K., you can apply for an E-2 visa by investing in a U.S. business. It’s not a green card, but it lets you stay and manage your investment. Many EB-5 investors use this visa as a bridge while they wait.
The E-2 is renewable every two years, and it allows your spouse to get a work permit too. But it only works if your country has an E-2 treaty with the U.S., and the business must be active, not just holding EB-5 funds. Visa length is usually 2 years, and it can be renewed indefinitely as long as the business stays active.
You’ll still need to prove that your E-2 business is separate from your EB-5 project. USCIS treats them differently, and mixing the two can cause delays or denials.
H-1B Visa (Specialty Occupations)
If you have a U.S. employer willing to sponsor you, the H-1B could be a path. It’s a dual-intent visa, so USCIS doesn’t mind if you have an EB-5 petition active. You’re allowed to stay for up to 3 years, extendable to 6 years. It’s one of the few visas that can sit comfortably alongside an EB-5 process.
The catch? It’s lottery-based unless you’re at a cap-exempt employer. Timing is everything here, as the lottery opens around March each year. You’ll also need a degree that matches the job role.
L-1 Visa (Intra-Company Transfer)
The L-1 visa is for employees of international companies who are transferring to the U.S. branch. This visa has two categories: L-1A (executives and managers) and L-1B (specialized knowledge). Both are dual-intent visas, so you won’t face any conflicts with your EB-5 application. L-1A holders can stay up to 7 years, while L-1B holders can stay for 5 years. This visa is an excellent option if you’re working for a multinational company.
F-1 Visa (Student Visa)
The F-1 student visa allows foreign students to remain in the U.S. while pursuing a full-time degree. While the F-1 can work for some, it’s not ideal for EB-5 applicants, as it requires nonimmigrant intent. Once you file an EB-5 petition, using an F-1 visa can create complications, and you may risk denial if the USCIS believes your intent has shifted from nonimmigrant to immigrant status.
Not sure which visa fits your stay? Sweta Khandelwal can walk you through visa choices while protecting your EB-5 progress.
Adjustment of Status & Concurrent Filing
If you’re looking for ways to stay in the U.S. while waiting for your EB-5 green card approval, Adjustment of Status (AOS) is a game-changer. In 2025, a new shift allows concurrent filing of your Form I-526E (EB-5 petition) and Form I-485 (Adjustment of Status application), making your green card journey smoother.
What is Adjustment of Status (AOS)?
The Adjustment of Status (AOS) lets you live and work in the U.S. while your green card is being processed. Instead of waiting for your EB-5 petition to be approved overseas, AOS allows you to stay in the U.S. legally throughout the process. AOS can also grant you the ability to work and travel while your application is pending.
Concurrent Filing: The New Way Forward
Previously, you had to wait for your I-526 approval before you could apply for Adjustment of Status. But now, concurrent filing of Form I-526E and Form I-485 is an option. This means you can submit both your EB-5 petition and your adjustment application at the same time, speeding up your path to a green card.
Required Forms for Concurrent Filing
If you’re planning to go this route, make sure to have the following forms ready:
- Form I-526E: Your EB-5 investor petition.
- Form I-485: Adjustment of Status application.
- Form I-765: Application for Employment Authorization (EAD).
- Form I-131: Application for Travel Document (Advance Parole).
The Perks of Concurrent Filing
With the ability to file for both your EB-5 petition and Adjustment of Status at the same time, you can start working and traveling in the U.S. almost immediately. This new process minimizes the time you’re without a work permit and gives you peace of mind while waiting for your EB-5 approval.
Also Read: EB-5 Visa Investment Immigration Attorney Fees
Implications of Traveling with an EB-5 Petition
You can travel while your EB-5 petition is under processing, but certain rules apply. Be mindful that traveling without the right documentation could complicate your immigration status.
Required Documentation for Re-entry
To re-enter the U.S. while your EB-5 petition is pending, you will need:
- Valid visa (such as a B-1/B-2 or any other non-immigrant visa).
- Advance Parole if you’re applying for Adjustment of Status and need permission to re-enter after traveling abroad.
Make sure your Form I-797 receipt notice is available as proof that USCIS has received your EB-5 petition. This can be useful during re-entry.
Conditional Permanent Residency and Travel
Once your EB-5 petition is approved, you will receive a conditional green card valid for two years. However, there are specific travel rules and responsibilities that come with this status.
Rights and Restrictions on International Travel as a Conditional Permanent Resident
As a conditional permanent resident, you have the right to travel in and out of the U.S., but with certain restrictions. If you plan to leave the U.S. for extended periods, you must follow the rules regarding re-entry to avoid complications with your residency status.
Risks of Extended Absence
If you stay outside the U.S. for too long, you could face significant risks, such as:
- Reentry bans after extended absence (usually more than six months).
- Abandonment of your conditional permanent resident status could lead to a need to reapply.
- The I-829 form (Petition by Entrepreneur to Remove Conditions on Permanent Resident Status) could be at risk, and in some cases, you might be asked to re-file.
To avoid these risks, it’s important to limit your time abroad and maintain ties to the U.S.
Maintaining Ties to the U.S.
Keeping a strong connection to the U.S. is vital during this time. These steps include:
- Maintaining physical presence in the U.S. for more than half the year.
- Filing U.S. taxes as a resident.
- Holding a U.S. address and staying in contact with the U.S. during extended trips abroad.
Wondering about the implications of international travel after receiving a conditional green card? The Law Offices of Sweta Khandelwal can provide you with the best advice on maintaining your green card status while traveling.
How Travel Affects Spouse and Children on Dependent Visas
When you’re processing your EB-5 visa, it’s essential to understand how travel can affect your spouse and children. As dependents of the primary EB-5 applicant, your family members may be on dependent visas like the H-4 (for spouses) or derivative EB-5 visas for children under 21.
If you travel while your EB-5 petition is pending, your family members must also ensure they have the appropriate visas or Advance Parole to avoid any issues with re-entry. If they don’t have the right documentation, they may face delays in returning or be denied re-entry to the U.S.
Educational Implications for Children During Travel or Status Shifts
Children in the EB-5 process might experience educational disruptions if their status shifts during travel. While they’re on dependent visas, frequent travel or waiting for adjustment of status can complicate their school enrollment or visa status.
- B-2 visa holders, for example, might face issues enrolling in school if their visa status is not aligned with their intention to stay.
- Children on derivative EB-5 visas must maintain lawful status, and frequent travel could complicate their visa validity, impacting their educational opportunities in the U.S.
Risks of Family Separation During Concurrent Filing or Adjustment
In case of family separation, it’s essential to plan travel around family members’ specific visa needs and timelines to avoid these risks. This includes ensuring that your dependents don’t lose status during the process, particularly if you’re dealing with non-immigrant status or dependent visas.
Planning Travel So Dependents Don’t Fall Out of Status
To avoid complications, you should plan family travel carefully. Make sure that all dependents:
- Have the necessary travel documents, such as Advance Parole or valid visas, for smooth re-entry.
- Maintain their visa status throughout the EB-5 petition process and beyond.
- They are aware of any potential risks regarding their immigration status during periods of travel or while waiting for adjustment of status approval.
Also Read: H-1B Visa Quota: Timeline and Requirements Explained
Conclusion
The path to green card approval through the EB-5 visa is filled with opportunities but also some challenges, especially when it comes to travel. Whether you’re trying to stay in the U.S. during the process or ensuring your family’s status remains intact, careful planning and understanding of your options can make all the difference.
Imagine finally getting the approval for your EB-5 petition and knowing that your family has also been able to remain in the U.S. without disruptions. But that doesn’t happen by chance. You need clear guidance on travel rules, visa options, and the best strategy to keep your EB-5 petition on track.
That’s where professional legal support becomes crucial. Are you worried about travel restrictions while your EB-5 petition is being processed? Contact the Law Offices of Sweta Khandelwal to get the best advice on how to travel without jeopardizing your status. Sweta Khandelwal has helped countless families handle these complexities and can help you too. Don’t let confusion over concurrent filing or adjustment of status put your green card dreams at risk. Contact The Law Offices of Sweta Khandelwal today to learn how to manage your EB-5 process seamlessly.
Disclaimer
Please note that the prices listed for visa services are estimates and may vary in real-time. We recommend consulting the official government websites or other authoritative resources for the most up-to-date pricing information. These estimates do not constitute a guarantee of costs, and fees may change without notice.
