Recent USCIS guidance and public statements suggest that USCIS will begin applying a much stricter discretionary framework to Form I-485 adjustment of status applications, including employment-based cases such as EB-5. At this point, there is significant uncertainty regarding how broadly this policy will be implemented in practice, whether it will survive legal challenge, and how aggressively USCIS officers will apply it in individual cases. That said, EB-5 investors should understand the potential risks now rather than after a problem arises.
Most importantly, the new policy memorandum characterizes adjustment of status in the United States as “an extraordinary relief” that permits applicants to obtain their green cards in the United States, rather than going through the “normal” process of applying for their green cards at a U.S. Consular Post abroad. This is not factually accurate, nor in accordance with the plain language in the Immigration and Nationality Act at 8 U.S.C. 1255, as amended by Congress, time and time again, USCIS’ own regulations, the entirety of Volume 7 of its Policy Manual, and long-standing case law by federal courts and the Board of Immigration of Appeals.
Historically, eligibility for the benefit sought has been viewed as a positive factor, and USCIS ordinarily exercises discretion positively for adjustment applicants, absent any negative factors. Although USCIS has since indicated that “people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path,” which certainly is the case for EB-5 investors, and the EB-5 Reform and Integrity Act of 2022’s explicit authorization to file an adjustment of status concurrently, a close reading of the memorandum indicates that using the Employment Authorization Document (EAD) and Advance Parole (AP) lawfully obtained as interim benefits as part of an EB-5 submission is now considered a negative factor for AOS discretionary analysis.
While the uncertainty regarding the implementation of this new policy occurs, an EB-5 investor should know that if USCIS denies an I-485 application, and the applicant is not independently maintaining valid nonimmigrant status at the time of denial, the applicant will immediately begin accruing unlawful presence and could be expected to depart the United States promptly. In some cases, USCIS may also issue a Notice to Appear (NTA) for removal proceedings. Additionally, if an EB-5 petition is ultimately approved after departure from the United States, the applicant may need to pursue immigrant visa processing through a U.S. consular post abroad. That process typically requires filing Form I-824 to transfer the approved petition to the National Visa Center, which can add substantial additional delay.
There are also heightened concerns for applicants who entered the United States in B-1/B-2 visitor status, or with other non-dual intent visas such as F-1, J-1, O-1, TN, E, H-1B1, shortly before filing adjustment applications. USCIS may scrutinize whether the applicant had preconceived immigrant intent at the time of entry; whether any representations made to CBP were inconsistent with later actions; timing between entry and filing; and whether any alleged misrepresentation could trigger inadmissibility concerns under INA § 212(a)(6)(C)(i). Notably, a finding of fraud or willful misrepresentation can carry severe consequences, including a permanent inadmissibility bar, absent waiver eligibility.
At present, much remains unsettled. There are substantial legal questions regarding how far USCIS can push these policies, and future litigation may significantly limit or reverse portions of this approach. EB-5 investors are individuals who have committed substantial capital to the United States economy, supported U.S. businesses, created employment opportunities, and established long-term ties to the country, and in many cases, EB-5 investors possess extraordinarily strong positive equities. You may consider proactively gathering documentation that may support a favorable exercise of discretion if questions later arise during adjudication. A well-developed legal brief can help provide context, demonstrate credibility, and reduce the risk that USCIS draws adverse conclusions based solely on incomplete information. Depending on the case, useful evidence may include:
Proof of long-term lawful presence and compliance history;
- Prior approval notices and maintenance of status documentation;
- Tax returns and proof of tax compliance;
- Evidence of business ownership, entrepreneurship, or investment activity;
- Documentation relating to job creation or economic contribution;
- Evidence of community involvement or charitable activity;
- School records for children;
- Evidence of property ownership or long-term residence in the United States;
- Explanations regarding layoffs, status transitions, or technical violations;
- Travel history and documentation supporting lawful intent at entry;
- Declarations explaining the applicant’s immigration history and good moral character.
FAQ’s About USCIS’s New I-485 Adjustment of Status Policy
1) I have an I-485 Adjustment of Status Application pending with USCIS, or I am about to file an I-485 Adjustment of Status Application. Do I have to leave the U.S. and apply for my green card at a US Consular Post abroad?
No, you do not need to leave the United States immediately to apply for your green card at a U.S. Consular Post Abroad. In fact, we recommend that you not take any action without first consulting with your attorney about the risks and benefits of staying in the U.S. and continuing your I-485 adjustment of status process.
2) I have many positive factors as outlined above and not many or no negative factors as outlined above. Will USCIS approve my I-485 application or make me leave the U.S. to apply for my green card abroad?
While it is good that you have many positive factors and not many/or no negative factors, we do not yet know how USCIS will apply this new guidance in practice. We anticipate that USCIS will issue more guidance to its officers and the public on how it will interpret this new guidance and apply it to I-485 adjudications going forward. Thus, we do not yet know the answer to this question.
3) I have some negative factors (such as a minor criminal history, or I overstayed my visa or I filed my I-485 application while I was in a non-immigrant status that did not allow for immigrant intent (i.e., F-1, TN, E-3, O-1, etc.). How will this impact my I-485 application for adjustment of status?
If you have negative factors that USCIS may weigh against granting your I-485 application, then you should be prepared to provide overwhelming evidence of the positive factors and hardships that you and your family members will suffer if you have to leave the United States and apply for your green cards at the U.S. consular post abroad. You should schedule a consultation appointment with your attorney to discuss these issues further. If you do not have an attorney, we recommend that you hire one to help you with this situation.
4) Are there any risks if I leave the U.S. to apply for a green card at the U.S. Consular Office abroad? Is there a chance my green card will be denied? Will I not be allowed back into the U.S.?
Yes, there may be substantial risk if certain circumstances exist (i.e. you have accrued unlawful presence in the U.S. and would be subject to a 3 year, 10 year or permanent bar if you leave the U.S.; there are substantial negative factors including criminal offenses or immigration fraud; etc.) that may result in the denial of your green card at the U.S. Consular post abroad or your inability to return to the U.S. for a significant period of time. Additionally, the normal processing of green cards at the U.S. Consular Posts abroad can take several years to complete, and/or immigrant visa backlogs in your category may result in additional lengthy adjudication delays of your green card
If you have any questions, please contact us at visalaw@wolfsdorf.com
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