On May 21 2026 USCIS issued Policy Memorandum PM‑602‑0199, redefining adjustment of status (AOS) for foreign nationals already in the United States as an “extraordinary relief” rather than a routine option. The memo directs officers to treat in‑country green‑card processing as a discretionary exception, meaning most applicants must return to their home country for consular processing unless they can demonstrate “unusual or even outstanding equities.”
Policy change overview
- Effective date: announced publicly on May 22 2026.
- Key language: AOS under INA §245 is a discretionary benefit, not an entitlement.
- Evaluation criteria: officers must consider the applicant’s overall circumstances—lawful status history, unauthorized work, visa overstays, and “preconceived immigrant intent.” Demonstrating the absence of negative factors is no longer sufficient; applicants must show exceptional equities, referencing the 1974 BIA decision Matter of Blas.
- Scope: The memo does not limit its application to filings after a specific date; it appears to apply to pending I‑485 applications as well.
- Official rationale: USCIS argues the change restores the immigration system to its original statutory intent and frees resources for other priorities.
Potential impact on EB‑5 investors
- No EB‑5‑specific guidance: USCIS has not clarified how the memo interacts with the EB‑5 Reform and Integrity Act (RIA) of 2022, which introduced concurrent filing of Form I‑526E and I‑485 for investors already in the U.S.
- Economic‑benefit argument: USCIS spokesman Zach Kahler suggested that applicants whose petitions provide an economic benefit “will likely be able to continue on their current path,” but no formal criteria, investment thresholds, or qualifying visa categories have been published.
- Uncertainty factors:
- EB‑5 investors often enter on non‑dual‑intent visas (e.g., F‑1, B‑1/B‑2). The memo’s focus on “preconceived immigrant intent” could jeopardize AOS eligibility for those cases.
- The EB‑5 program requires a minimum investment of $800,000 (or $1.05 million outside Targeted Employment Areas) and the creation of at least ten full‑time U.S. jobs, which arguably satisfies an “economic benefit” test, but without explicit guidance the risk remains.
- Industry response: Invest in the USA (IIUSA) highlighted that Congress enacted specific AOS provisions for EB‑5 investors (INA §§245(n) and 245(k)) and called on USCIS to clarify how PM‑602‑0199 aligns with those statutes.
Broader implications for employment‑based immigration
- Backlog concerns: Many U.S. consular posts already experience appointment delays exceeding a year. Requiring applicants to leave the U.S. could exacerbate these backlogs and trigger re‑entry bars (three‑ or ten‑year) for those with accrued unlawful presence.
- Criticism: Opponents warn that the policy may increase processing delays, cause family separations, and strain already‑overburdened consular operations worldwide.
- Support: Proponents argue the change restores consistency with the statutory framework governing immigrant‑visa processing.
What to watch
- Operational guidance: USCIS has yet to publish detailed instructions on how officers will apply the memo across immigration categories, including EB‑5.
- Retroactivity: It remains unclear whether the policy will be applied retroactively to all pending I‑485 cases.
- Legal challenges: Several immigration law firms anticipate litigation against the memorandum.
- Consular capacity: Monitoring of consular appointment availability and any adjustments to re‑entry bar enforcement will be critical for applicants forced to process abroad.
Practical advice for EB‑5 investors: engage experienced immigration counsel, compile thorough documentation of positive equities (e.g., job‑creation evidence, investment details), and stay alert to forthcoming USCIS guidance and potential court rulings.
Source article: outboundinvestment.com
