By Vivek Tandon

Among the numerous changes introduced by the EB-5 Reform and Integrity Act (RIA) of 2022, one change that has proven very beneficial for US H-1B workers is the concurrent filing of I-485 Adjustment of Status (AOS) with the EB-5 petition.

Benefits of Concurrent Filing

In the pre-RIA era, an EB-5 investor applying from within the U.S. had to wait for I-526 approval to file for AOS. Now, an H-1B worker can file for AOS concurrently with the I-526E petition.

This is significant because a US-based EB-5 investor can apply for an Employment Authorization Document (EAD) and Advance Parole (AP) along with the I-485 AOS petition.

What is the EAD?

The EAD is an unconditional five-year work permit. The EAD frees the EB-5 investor from all employer sponsorship requirements to work in the U.S. With the EAD in hand, the H-1B worker can switch jobs, change to a field not connected to his or her study, or even opt for self-employment without any restrictions or not work at all but still be able to stay in the U.S.

Simply put, regarding freedom to work without employer sponsorship in the U.S., the EAD effectively puts the H-1B worker on par with a green card holder.

The AP is a travel permit that allows the H-1B worker to visit India and travel outside of the U.S. without onerous visa stamping requirements and formalities.

Generally issued in the form of a “Pink Card”, the combined EAD and AP card offers virtually all the work and travel-related benefits that a green card offers.

The Pink Card Advantage

What makes the pink card even more beneficial is that the applications for EAD and AP, filed concurrently with the EB-5 petition, normally get processed in around three to six months of filing.

This is significant because I-526E and I-485 approvals for an EB-5 investor choosing a rural Regional Center project can take around 12-18 months, or even longer.

With a pink card in hand in three to six months, the H-1B worker can enjoy most of the work and travel-related benefits offered by the EB-5 visa even before the I-526E gets approved.

Pink Card—Valuable Backup Option

The pink card can also serve as a valuable backup option for the H-1B worker in the U.S.

The H-1B worker does not have to switch to the EAD once issued. Dependent family members can switch to the EAD while the primary applicant can remain on H-1B visa status.

The Indian H-1B visa holder can continue working on the existing status until there is a need to switch to the EAD. If the H-1B worker is laid off or comes across a better job opportunity, then he or she can simply switch to the EAD and continue living and working in the U.S. without any hassles.

The biggest benefit of the pink card is that it helps the H-1B worker regain control of his or her professional career.

With the tech sector impacted by disruptive developments like Artificial Intelligence as well as the state of the global economy, the pink card creates a level playing field where the H-1B worker can explore new job opportunities without being at a disadvantage compared to somebody who does not require employer sponsorship to work in the U.S.

Beyond H-1B workers, the advantage of the pink card extends to an EB-5 applicant who is in the U.S. on any other work visa such as L-1A or even a F-1 student visa or F-1 OPT work authorization.

One important restriction is that concurrent filing is allowed provided there is no visa backlog for the applicant’s country of origin. This means the advantage of concurrent filing and the pink card won’t be available to Indian H-1B workers once the reserved EB-5 categories, current as of date, become backlogged.

This means a quick decision to apply for the EB-5 visa today can offer significant benefits while applying after a visa backlog begins can result in a loss of pink card advantage for U.S.-based H-1B workers.

(Author is Founder & CEO, EB5 BRICS)

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