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EB5 Applicants Now Benefit from Section 245(k)

By July 26, 2022Immigration
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On March 11, 2022, Congress passed the EB-5 Reform and Integrity Act of 2022, officially reauthorizing the EB-5 regional center program. The program was reauthorized for 5 years, until September 30, 2027 and the act resulted in several changes to the EB5 program, including higher investment amounts, new source of funds requirements and the ability for investors who are already in the U.S. to file Form I-485 adjustment of status applications with their I-526 applications. Another important change from the reform act is that EB-5 investors can now benefit from Section 245(k).

What is Section 245(k)?

Under INA 245(k) certain green card applicants are able to adjust status even if they have previously failed to maintain status, engaged in unauthorized employment and/or violated the terms of a nonimmigrant visa. Normally if an applicant has any of these violations, they are barred from adjustment status in the United States. However, under 245(k) the immigration service will only look back as far as the applicant’s most recent lawful admission to the United States. As long as the applicant has not failed to maintain status, violated of the terms of their visa and/or engaged in unauthorized employment for more than 180 days, they can still adjust status in the U.S.

Example of how INA 245(k) Can Help an EB5 Applicant

Let us look at a hypothetical situation to see how INA 245(k) works in practice.

A foreign national enters the U.S. as a B2 tourist with an I-94 that expires March 1, 2019. The foreign national ends up staying past the I-94 end date and departs the U.S. on April 1, 2019.

In 2020, the foreign nationals enters the U.S. on an H1B visa and subsequently files an EB5 I-526 petition. Prior to the reform act, this applicant would have to apply for the green card at a U.S. Consulate abroad, as the prior failure to maintain status would bar the person from adjusting status in the U.S.

However, since EB-5 applicants are now eligible for the INA 245(k) exemption, the foreign national can apply to adjust status in the U.S. and the immigration service will only look back as far as the person’s last lawful admission. As long as the applicant has not failed to maintain status, violated of the terms of their visa and/or engaged in unauthorized employment for more than 180 days, they can still adjust status in the U.S.

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