May 23, 2026 | By מייקל א
USCIS announced that it has issued a new policy memorandum that may affect how officers review adjustment of status applications, including Form I-485 applications filed by EB 5 משקיעים. The memo attempts to reframe adjustment of status as an extraordinary form of discretionary relief, rather than as a regular statutory pathway for eligible applicants already in the United States.
For EB-5 investors, this issue is practical and immediate. Adjustment of status has become a central part of EB-5 planning, especially after the EB-5 Reform and Integrity Act of 2022. Many investors in the United States have relied on the ability to file Form I-485 when a visa is available, including through concurrent filing. A pending I-485 may allow eligible investors and family members to remain in the United States while the case is pending, apply for employment authorization, and apply for advance parole.
The new USCIS memo does not eliminate adjustment of status. It does not repeal the EB-5 Reform and Integrity Act. It does not repeal INA §245(n). It does not repeal INA §245(k). It does not say that EB-5 investors are categorically barred from adjustment. But it may make EB-5 adjustment filings more evidence-driven, more discretionary, and more vulnerable to officer scrutiny.
The key question is whether USCIS will apply the memo narrowly or broadly. A narrow application would allow officers to consider real negative factors, such as fraud, unauthorized employment, serious status violations, criminal conduct, or inconsistent statements to immigration officials. A broad application would treat the act of filing adjustment itself as disfavored because consular processing was available. That broader approach is where the memo becomes legally vulnerable, especially for EB-5 investors.
Adjustment of Status Is a Statutory Pathway, Not a Loophole
Adjustment of status is the process that allows an eligible person in the United States to become a lawful permanent resident without leaving for an immigrant visa interview abroad. The general authority is INA §245(a), 8 U.S.C. §1255(a). The statute allows adjustment where the applicant was inspected and admitted or paroled, is eligible for an immigrant visa, has a visa immediately available, and is admissible to the United States.
USCIS is correct that adjustment is discretionary in many cases. INA §245(a) says that status “may” be adjusted. But that does not mean USCIS can convert adjustment into a rare exception that exists only when consular processing is impossible or when extraordinary circumstances exist.
Congress created adjustment. Congress limited adjustment. Congress created bars to adjustment. Congress created exceptions to those bars. For EB-5 investors, Congress recently enacted a special provision directly addressing EB-5 adjustment filing. That statutory structure matters. USCIS may exercise discretion, but discretion should not become a substitute for a new eligibility rule that Congress did not enact.
The EB-5 Reform and Integrity Act Changed the Analysis
The most important EB-5-specific statute is INA §245(n), 8 U.S.C. §1255(n), added by the EB-5 Reform and Integrity Act of 2022. That provision states:
If the approval of a petition for classification under section 203(b)(5) would make a visa immediately available to the alien beneficiary, the alien beneficiary’s application for adjustment of status under this section shall be considered to be properly filed whether the application is submitted concurrently with, or subsequent to, the visa petition.
This language is central to the EB-5 analysis. Congress did not merely leave EB-5 adjustment to general agency discretion. Congress specifically addressed EB-5 adjustment filing and provided that, when the statutory conditions are met, an EB-5 investor’s adjustment application is properly filed whether submitted concurrently with or after the EB-5 petition.
That does not guarantee approval. USCIS may still adjudicate the I-526E. It may still review source and path of funds, sustainment, job creation, project compliance, admissibility, fraud, national security concerns, and discretion. But the mere fact that an EB-5 investor used the concurrent adjustment process should not be treated as negative where Congress expressly made that filing posture proper.
This is one of the strongest legal answers to the new memo. If USCIS treats EB-5 adjustment as inherently suspect because the investor could have consular processed, it risks contradicting the statute Congress enacted for EB-5 investors.
EB-5 Is an Economic Benefit Category
EB-5 is also different because it is an economic immigration category. The fifth employment-based preference is for people who invest significant funds in the United States and create or maintain jobs for U.S. workers. That is not incidental to EB-5. It is the purpose of the program.
This matters because, after the memo was released, USCIS appeared to qualify its public position in a statement reported by Business Insider. USCIS reportedly stated that while it works to operationalize the policy, applicants who provide an “economic benefit” or are otherwise “in the national interest” will likely be able to continue on their current path, while others may be asked to apply abroad depending on individualized circumstances.
That statement is potentially important for EB-5 investors. EB-5 investors should be among the clearest examples of applicants who can claim economic benefit. They invest capital. Their projects must create jobs. Many EB-5 projects involve construction, operations, regional development, business expansion, infrastructure, hospitality, health care, manufacturing, or other U.S. economic activity.
But investors should not treat that statement as a safe harbor. It is not a statute, regulation, or binding USCIS Policy Manual provision. USCIS has not yet defined what “economic benefit” or “national interest” means in this context. Until formal guidance is issued, EB-5 investors should assume that officers may still conduct a searching discretionary review.
The practical lesson is that EB-5 adjustment filings should affirmatively document the economic benefit of the investment. The filing should not simply include the I-485 forms and assume that EB-5 eligibility speaks for itself. It should explain the investment, the project, the job creation, the source and path of funds, the business activity, and why the investor’s adjustment supports the purpose of the EB-5 program.
Because USCIS may issue more guidance, and because agency implementation may evolve, investors should check this blog for updates.
INA §245(k) Remains Important
INA §245(k), 8 U.S.C. §1255(k), allows many employment-based applicants to remain eligible for adjustment despite limited periods of unauthorized employment, failure to maintain lawful status, or other violations of the terms of a nonimmigrant visa, if the aggregate period after the last lawful admission does not exceed 180 days.
This provision matters for EB-5 investors in two ways. First, it may preserve eligibility for an investor who has a short gap in status, a brief period of unauthorized employment, or another limited violation. Second, it shows that Congress expected employment-based applicants to adjust status inside the United States even where limited violations occurred. Congress did not say such applicants must leave and consular process. It created a specific forgiveness rule.
USCIS may argue that §245(k) preserves eligibility but does not guarantee favorable discretion. That is true. But USCIS should not use discretion to erase the forgiveness Congress created. If a violation falls within §245(k), USCIS may still consider the full record, but it should not treat a forgiven violation as though Congress never enacted §245(k).
For EB-5 investors, the practical point is simple: if §245(k) is relevant, calculate it carefully, document it clearly, and explain it affirmatively.
The I-526E Processing Selection Matters
The new USCIS memo also makes the Form I-526E processing selection more important.
Part 6 of Form I-526E requires the investor to identify how they intend to seek lawful permanent resident status. The investor must select either immigrant visa processing abroad or adjustment of status. The instructions likewise direct the petitioner to select the appropriate box for either immigrant visa processing abroad or adjustment of status.
That selection may not be irrevocable, but it is not meaningless. It can affect routing, timing, nonimmigrant intent issues, and later procedural steps.
In many cases, selecting consular processing on Form I-526E may preserve more procedural flexibility. If the petition is approved, the case may be routed toward the National Visa Center. If the investor later becomes eligible to file Form I-485 in the United States, INA §245(n) may still permit adjustment if the statutory requirements are satisfied.
The reverse may be less efficient. If the investor selects adjustment of status but later needs consular processing, the approval may not be routed automatically to the National Visa Center. Additional steps may be required to move the case to the Department of State, which can create delay.
This does not mean every investor should select consular processing. Some investors who are already in the United States, eligible to file I-485, and in a strong status posture may reasonably select adjustment. But the choice should be deliberate. It should be made after analyzing visa availability, current status, travel plans, family members, potential retrogression, and whether later adjustment may be available.
EB-5 I-485s May Need to Be Prepared Differently
Historically, many EB-5 adjustment filings focused on eligibility, admissibility, medicals, identity documents, immigration history, and the required forms. Under the new memo, investors should expect more emphasis on discretion.
An EB-5 adjustment filing should be prepared as a legal submission. It should explain why the investor is eligible and admissible, but also why the investor merits adjustment as a matter of discretion.
The record may include evidence of lawful admission, maintenance of status, authorized employment, tax compliance, lack of criminal history, lack of fraud or misrepresentation, family ties, community ties, business activity, job creation, lawful source and path of funds, and the practical disruption that would result from unnecessary consular processing.
For EB-5 investors, the discretionary record should also connect the case to the purpose of the EB-5 program. The investor is not merely asking for convenience. The investor is participating in a congressionally created immigrant investor program designed to bring capital to the United States and create jobs for U.S. workers.
Pending EB-5 I-485 Applications Raise Reliance Concerns
One of the most important unresolved issues is how USCIS will treat EB-5 I-485 applications that were already pending before the memo.
Many investors filed adjustment applications before the memo was issued. Some filed concurrently with Form I-526E under INA §245(n). Some paid substantial filing fees, applied for employment authorization, applied for advance parole, made employment and travel decisions, enrolled children in school, leased or purchased homes, and structured their lives around the pending adjustment process.
The memo does not appear to provide a grandfathering rule or transition period for pending I-485 applications. That creates reliance concerns. The better argument is that USCIS must exercise discretion based on the statute and the facts of the case. It should not treat a pre-memo, statutorily proper EB-5 adjustment filing as an adverse factor merely because the investor used adjustment rather than consular processing.
That argument is especially strong where the investor relied on §245(n). Congress expressly allowed certain EB-5 adjustment applications to be properly filed concurrently with or after the EB-5 petition. USCIS should not use a later policy memo to penalize investors for relying on that statute.
The Case Law USCIS Cites Does Not Fit Modern EB-5 Cleanly
USCIS relies on older administrative and federal cases describing adjustment as discretionary, extraordinary, and not intended to replace consular processing. Those cases support a narrow and familiar point: adjustment is discretionary, and USCIS may deny adjustment where negative factors outweigh positive equities.
But many of the cited cases do not fit modern EB-5 adjustment practice. Many arose in deportation or removal proceedings. Many involved overstays, unauthorized employment, criminal conduct, fraud concerns, preconceived intent, motions to reopen, or judicial review issues. Some predate the modern employment-based preference system created by the Immigration Act of 1990. Some predate the modern EB-5 program. Many predate the EB-5 Reform and Integrity Act of 2022 and INA §245(n).
One case likely to receive attention is Kim v. Meese, because it involved an investor-type adjustment case. But Kim involved a B-1 visitor and pre-modern investor rules. It predates the current EB-5 statutory structure, the 1990 employment-based preference system, the RIA, and §245(n). It may support the general proposition that investor adjustment is discretionary. It does not answer whether modern EB-5 concurrent adjustment under §245(n) can be treated as inherently suspect.
The better reading of the case law is narrower. USCIS may consider real negative facts. It may deny adjustment where the record warrants denial. But the cases do not create a broad rule that EB-5 investors must consular process unless they can prove extraordinary circumstances.
Investor Status and Family Issues Still Matter
EB-5 investors in the United States may be in many different nonimmigrant classifications. The specific status matters, but the analysis is highly fact dependent.
Investors in H-1B or L-1 status usually have stronger arguments because those are dual-intent classifications. Investors in E-2 or O-1 status may also have favorable arguments, depending on the facts. F-1 students require more careful planning because F-1 is not a classic dual-intent category. B-1/B-2 visitors require the most caution because visitor status is temporary and may create serious intent and timing issues if the investor later seeks adjustment.
Children approaching age 21 also require separate planning. Filing Form I-485 can be important in some Child Status Protection Act analyses, but CSPA protection is not automatic just because an I-526E is filed or an I-485 is submitted. These issues are too fact-specific to reduce to one rule. They should be analyzed before filing, not after a problem arises.
What EB-5 Investors Should Do Now
EB-5 investors should not assume that adjustment is unavailable. It remains available where the statutory requirements are met. But investors should also not assume that the I-485 will be treated as a routine form filing.
Investors should review their full immigration history before filing. They should identify any periods of unauthorized employment, failure to maintain status, overstays, unauthorized study or work issues, or inconsistencies in prior visa or entry statements. They should analyze whether §245(k) applies. They should cite §245(n) where concurrent or post-I-526E adjustment filing is involved. They should document the economic benefit of the EB-5 investment.
Investors who have already filed I-485 should preserve evidence of reliance and compliance. Investors who have not yet filed should consider whether adjustment or consular processing is the better strategy based on current status, visa availability, travel needs, family circumstances, and risk tolerance.
Investors filing Form I-526E should also treat the Part 6 processing selection as a strategic decision. It is not necessarily permanent, but it can affect routing and future flexibility.
What EB-5 Investors Should Take Away
The new USCIS memo does not end EB-5 adjustment of status. But it may change how EB-5 adjustment cases are reviewed. For EB-5 investors, the strongest legal response is grounded in the statute. Congress created adjustment of status. Congress created EB-5. Congress created §245(k). Congress later enacted §245(n), specifically addressing EB-5 adjustment filings submitted concurrently with or after the EB-5 petition when visa availability exists.
USCIS may require EB-5 investors to prove that they are eligible, admissible, and deserving of favorable discretion. But USCIS should not use discretion to make unavailable what Congress expressly authorized. For now, EB-5 investors should treat adjustment of status as a serious legal filing. The record should show not only eligibility, but also lawful conduct, positive equities, economic benefit, and why adjustment is consistent with the EB-5 statute.
This issue is developing quickly. USCIS may issue more guidance, and public statements such as the Business Insider update may shape how the memo is applied to economic-benefit cases. We will continue to update this blog as new guidance, litigation, or agency practice develops.
FAQ: EB-5 Adjustment of Status After the New USCIS Memo
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