EB-5 Concurrent Filing: Why the Set-Asides Stay Current When the Main Line Does Not

Short answer. The reserved EB-5 categories exist so a rural, high-unemployment, or infrastructure investor is not stuck behind a queue that ran out of numbers. When they are current, an investor already in the United States can file the I-526E together with an I-485, an I-765 work permit, and an I-131 travel document. For an E-2 holder that combination is the main reason to choose a set-aside project. It also carries two costs that did not exist in 2024.

What fiscal 2026 looked like

India’s unreserved allocation was exhausted and the category went unavailable from June 10, 2026 through the end of the fiscal year, while mainland China sat at a final action date of December 1, 2016. Across the same period, the rural set-aside at twenty percent, the high-unemployment set-aside at ten percent, and the infrastructure set-aside at two percent stayed current for every country on both charts, all year.

Numbers reset each October 1. Check the current Visa Bulletin for where the charts stand today. The structural point outlasts any one bulletin.

One clarification, because it is commonly stated backwards. The Visa Bulletin does not gate the filing of an I-526E. That petition may be filed at any time, and it is what creates your priority date. The bulletin governs visa issuance and, through the Dates for Filing chart in months USCIS designates that chart, when an adjustment application may be submitted.

Why “current” is worth more than it sounds

Under INA § 245(n), 8 U.S.C. § 1255(n), added by the 2022 Act, an investor physically present in the United States in a lawful status may file the I-526E concurrently with an I-485, plus an I-765 and an I-131, when a visa number is available. Reserved categories being current means available.

For a treaty investor whose business is healthy but whose status renews on a two-year cycle, the package is the attraction:

• a pending green card application
• an independent work permit that does not depend on the E-2 business
• a filing date that fixes a child’s age under the Child Status Protection Act

That third item is the one that decides cases. A family came to me in February with a daughter who turned twenty as they sat down. Unreserved was hopeless for their chargeability. A rural project was current, they filed concurrently in April, and her age is now fixed at a number that works. Had they waited for the business to have one more good quarter, it would not have been.

Two costs that did not exist in 2024

Discretion. In May 2026 USCIS issued Policy Memorandum PM-602-0199, directing officers to treat adjustment of status as a matter of discretion and applying immediately to pending applications. Early commentary read it as limiting adjustment to extraordinary circumstances. DHS and USCIS then described it as a reminder of authority officers already had. Both readings are still in circulation and I would not tell you either is settled.

What the two readings share is the record. Under either, the discretionary factors are the ones a careful file already documents: tax compliance, a business that operates and employs people, status maintained without gaps, no unauthorized employment, family and community ties, and a coherent explanation of why adjusting makes sense on these facts. Build that record and the dispute over what the memo changed matters less. What is not in dispute is that the memo’s more forgiving discussion concerns the dual intent classifications, and E-2 is not one of them.

Travel. Under 8 C.F.R. § 245.2(a)(4)(ii), the classifications whose holders may travel abroad with a pending I-485 and return in that status are H-1, H-4, L-1, L-2, K-3, K-4, and V. E-1 and E-2 are not among them, which leaves a treaty investor two options and a real cost attached to each. Three Things That Undo an E-2 Family’s Green Card Plan works through what those costs are. Read it before you file concurrently.

If you are weighing a set-aside EB-5 project against staying on E-2, bring us your renewal date, your children’s ages, and your travel calendar. Those three facts decide it. Call or text 512.761.8479.

Read next: E-2 vs. EB-5 · Green Card Options for E-2 Business Owners