The availability of an Employment Authorization Document (EAD) can feel like a valuable shortcut while waiting for a green card. However, like any immigration benefit, it should be thought through carefully before deciding whether using it is the right strategic choice for you.
What Is an EAD in the Context of EB-5 Concurrent Filing?
Concurrent filing refers to the ability for certain nonimmigrant visa holders who are already in the United States to file multiple immigration applications at the same time, rather than in separate stages.
In the EB-5 context, the investor must always file Form I-526 or I-526E (the immigrant petition), and if the visa bulletin is current at the time of filing, they may also file Form I-485 (Adjustment of Status) concurrently. When filing concurrently, applicants can also submit Form I-765 (Employment Authorization Document) and Form I-131 (Advance Parole) at the same time.
When Using an EAD Makes Sense
You need flexibility in employment
An EAD provides a high level of flexibility. It allows you to work without employer sponsorship, move between employers more freely, take on multiple jobs at the same time, or even start and actively run your own business. Because it is not tied to a single employer or position, it can offer greater freedom in your career while your EB-5 case is pending.
Your underlying status is expiring or difficult to maintain
If maintaining your current nonimmigrant status is becoming costly, uncertain, or is approaching its expiration, relying on the EAD may be a practical option to consider.
This situation often arises when an individual is nearing the end of their H-1B maximum stay period or when an employer is no longer willing or able to continue sponsorship. In these circumstances, the EAD can serve as an alternative basis for work authorization during the EB-5 process.
When Using an EAD May Not Be Advisable
You want a “backup” immigration status
One of the key considerations in deciding whether to use an EAD is that it is the use of the EAD (not merely its approval) that shifts you away from maintaining your underlying nonimmigrant status.
Once you begin working under the EAD, your stay and employment authorization within the US are tied to your pending Form I-485 rather than your prior visa classification.
If the Form I-526/E or Form I-485 is later denied, the EAD would no longer be valid because it depends on the pending adjustment application. In that situation, you would lose the work authorization provided by the EAD and will not have an active underlying nonimmigrant status to rely on.
For this reason, maintaining H-1B or L-1, for example, can provide continuity during the EB-5 process.
Deciding whether to use an EAD obtained through EB-5 concurrent filing is ultimately a strategic choice that depends on your individual circumstances, employment needs, and long-term immigration planning. Because every situation is different, the decision should be made with a clear understanding of how each option fits into your broader EB-5 plan and long-term goals.
For questions about EB-5, please email Jacqueline Treviño at jtrevino@psbplaw.com.