Many EB-5 investors have become concerned after USCIS issued its recent policy memorandum on adjustment of status. Some applicants are worried that the memo ended the ability to apply for a green card from inside the United States. That is not correct. The memo may affect how USCIS officers review adjustment applications, but it does not eliminate EB-5 adjustment of status or EB-5 concurrent filing.
The strongest protection for EB-5 investors comes from federal law. Under INA §245(n), if approval of an EB-5 petition would make an immigrant visa immediately available to the beneficiary, the beneficiary’s Form I-485 adjustment application is considered properly filed whether it is filed at the same time as the EB-5 petition or after the petition is filed. USCIS’s EB-5 guidance also confirms that, when an immigrant visa is immediately available, an investor may file Form I-485 together with Form I-526 or Form I-526E, while the petition is pending, or after the petition is approved. https://www.uscis.gov/working-in-the-united-states/permanent-workers/employment-based-immigration-fifth-preference-eb-5/eb-5-immigrant-investor-process.
This means EB-5 concurrent filing remains available for qualified investors. However, “properly filed” does not mean “automatically approved.” Adjustment of status still requires statutory eligibility, admissibility, visa availability, and a favorable exercise of discretion. USCIS policy guidance may affect how officers weigh discretion, but it cannot repeal the statute or the regulation governing adjustment filings. Under 8 CFR §245.2, USCIS generally has jurisdiction over adjustment applications unless jurisdiction belongs to an immigration judge, and an immigrant visa must be immediately available for an adjustment application to be properly filed under INA § 245.
Because of the new memo, EB-5 investors should be prepared to address both positive and negative factors in the I-485 record. Negative factors may include immigration violations, unauthorized employment, failure to maintain status, fraud, misrepresentation, criminal history, national security concerns, or other conduct USCIS believes weighs against approval. These issues should not be ignored. If a negative factor exists, the filing should explain what happened, why it happened, whether the issue has been corrected, and why the investor still warrants a favorable exercise of discretion.
For EB-5 investors, strong positive evidence is now especially important. This may include evidence of lawful investment, lawful source and path of funds, job creation, business activity, compliance with EB-5 program requirements, tax compliance, lawful immigration history, family ties, community ties, good moral character, and lack of serious criminal history. The goal is to show not only that the investor qualifies under the EB-5 statute, but also that the total record supports approval of the I-485 as a matter of discretion.
The practical takeaway is clear: EB-5 investors should not panic, but they should prepare carefully. The new USCIS memo does not cancel EB-5 adjustment of status, does not eliminate concurrent filing, and does not automatically require eligible EB-5 investors to leave the United States for consular processing. For investors with an immediately available visa, adjustment of status remains available under the law. The best approach is to file a well-documented case that clearly establishes EB-5 eligibility, addresses any negative factors directly, and includes strong positive discretionary evidence.
