1040-NR or 1040 - taxpayer still on F-1 but filed EB5 application

[HariS]

taxpayer is on F-1 student visa all of 2024 and did stay in US for previous 2 years on said F-1 in two previous years . But filed EB-5 application and also concurrent adjustment of status in July 2024.  Got the EAD only in January 2025

Would he still be a non-resident as he is still an exempt individual (student) and his days will not count towards "substantial presence test"

If I were to extrapolate the "Example 2" in this IRS article, would they still be a 1040-NR regardless of EB-5 application.  Would the pending EB-5 be irrelevant, until they get the EAD (F-1 visa becomes invalid at that point)  if I am reading it right 

Tax residency status examples | Internal Revenue Service

thanks in advance

[puravidapto]

No, a pending EB-5 petition (I-526) — even with a concurrently filed I-485 (Adjustment of Status) — does not itself change the taxpayer's status for tax residency purposes. The issuance of an EAD (Employment Authorization Document) does not automatically void F-1 status either.

[HariS · Accepted solution]

Thank you! , We will go ahead with the 1040-NR