Work and Travel Authorization While EB-5 AOS is Pending

Navigating employment authorization while the Adjustment of Status (AOS) application is pending under the EB-5 immigrant investor program can be complex. This section details the critical steps and considerations for maintaining legal work authorization during this waiting period.

Understanding the Role of Form I-765

The primary mechanism for obtaining work authorization concurrently with an EB-5 AOS filing is through the submission of Form I-765, Application for Employment Authorization (EAD). When filed alongside Form I-485 (Adjustment of Status), it allows the applicant to legally work in the United States.

Concurrent Filing Strategy

For most EB-5 investors and their dependents (spouses and children, if applicable), the most efficient route is concurrent filing:

• File Form I-485 (EB-5 AOS petition).
• File Form I-765 (EAD application) simultaneously, referencing the pending I-485.
• File Form I-131 (Advance Parole/Travel Document) concurrently.

This strategy ensures that work authorization is requested immediately upon filing the AOS package.

Work Authorization Timeline and Validity

The processing time for the I-765 can vary significantly. Until the physical EAD card is received, the applicant must rely on specific regulations to maintain employment eligibility.

Maintaining Authorization While Awaiting the EAD Card

If the I-485 is filed concurrently with the I-765, the applicant may be able to continue working based on their previous period of authorized stay (e.g., under an approved I-94) until the EAD is approved, provided certain conditions are met. However, relying on the EAD is the safest legal approach.

Note on Automatic Extension: If the I-765 is timely filed for a renewal based on a pending I-485, the previous EAD may qualify for an automatic 180-day extension, though specific rules regarding the underlying basis of the EAD must be verified.

Travel Authorization (Advance Parole)

Concurrent filing of Form I-131 (Advance Parole) is crucial. Traveling outside the U.S. without approved Advance Parole while the I-485 is pending can be deemed an abandonment of the adjustment application.

Key considerations for travel:

1. Do not travel internationally until the Advance Parole document (Form I-512L or the EAD card containing "SERVES AS I-512 ADVANCE PAROLE") is physically received.
2. Ensure the Advance Parole document is valid for the duration of the intended travel.

Impact of RFE and Denial on Authorization

If USCIS issues a Request for Evidence (RFE) related to the underlying EB-5 petition (I-526E or I-829), the processing of the I-765 might be paused or delayed.

If the underlying AOS application (I-485) is ultimately denied, the associated employment authorization derived from that application automatically terminates. It is important to understand the legal implications of denial before making significant employment decisions.

For example, if the basis for the EAD was tied to the pending I-485, and the I-485 is denied, the applicant must cease employment immediately unless they have an alternative, independent basis for work authorization (e.g., a valid visa status that permits employment).

Conclusion

Securing work and travel authorization during the EB-5 AOS process hinges on the timely and accurate filing of Forms I-765 and I-131 concurrently with the I-485. Applicants must maintain vigilance regarding the validity dates on their EAD and Advance Parole documents to ensure continuous compliance with U.S. immigration law.