USCIS announced that, except in “extraordinary circumstances,” foreign nationals who are in the United States on temporary visas must leave the country and apply for a green card through consular processing abroad. The change is outlined in Policy Memorandum PM‑602‑0199 (May 21, 2024) and reframes adjustment of status (AOS) as “extraordinary relief” rather than a routine option.
Shift from AOS to Consular Processing
- The statutory basis (INA § 245) remains unchanged; the discretionary standard applied by officers has been tightened.
- Officers must now treat overseas consular processing as the default pathway.
- Applicants seeking AOS must demonstrate “unusual or even outstanding equities,” a standard derived from the 1974 BIA decision Matter of Blas.
- Factors considered include:
- Maintenance of lawful status
- Unauthorized employment
- Visa overstay
- Evidence of “preconceived immigrant intent” when entering on a temporary visa
“Economic Benefit” Carve‑out
USCIS spokesperson Zach Kahler indicated that applicants whose petitions provide an economic benefit or serve the national interest may still be able to adjust status in the United States. No specific criteria, thresholds, or qualifying visa categories have been published.
Impact on EB‑5 Investors
- The memo does not name the EB‑5 Immigrant Investor Program, leaving its status ambiguous.
- EB‑5 investors in the U.S. on F‑1, H‑1B, E‑2, or similar visas have relied on AOS, especially after the 2022 EB‑5 Reform and Integrity Act (RIA) allowed concurrent filing of Forms I‑526E and I‑485.
- Potential outcomes:
- If classified as an “economic benefit,” EB‑5 investors could continue AOS.
- If subject to the “preconceived immigrant intent” test, investors—particularly those on single‑intent visas such as F‑1—may be denied AOS and forced to consular process.
- Immigration firm WR Immigration notes that dual‑intent categories (e.g., H‑1B, L‑1) are “likely less impacted,” but EB‑5 was not included in that list.
Broader Legal and Practical Concerns
- Unlawful presence bars: Departing the U.S. after accruing unlawful presence can trigger three‑ or ten‑year re‑entry bars, potentially disqualifying applicants from the visa they intended to obtain.
- Consular backlogs: Some U.S. embassies have appointment waits exceeding a year; in countries with limited or closed diplomatic facilities (e.g., Afghanistan), applicants may have no viable venue for processing.
- Pending applications: USCIS has not clarified whether the memo applies retroactively to cases already filed or how it interacts with the RIA’s concurrent filing provisions.
Contextual Landscape
- The memo follows a series of restrictive measures introduced during the Trump administration, including heightened vetting of nationals from 19 “high‑risk” countries (ordered in late 2025).
- The EB‑5 program faces additional uncertainty: the proposed “Gold Card” visa, touted as a replacement for EB‑5, remains undefined; regional center authorizations expire in September 2027, and RIA grandfathering protects petitions filed before September 2026.
Outlook
- The policy’s effective date and scope remain unspecified.
- Immigration attorneys anticipate litigation, given the abrupt shift from decades‑long AOS practice.
- Investors and other applicants should assess the risk of unlawful presence bars, consular delays, and the lack of a clear “economic benefit” definition when planning their green‑card strategy.
Source article: www.imidaily.com
