The new policy memo issued by the US Citizenship and Immigration Services (USCIS) has created uncertainty for foreign nationals seeking green cards from inside the United States, including EB-5 investors already living in the country on temporary visas H-1B, F-1, and E-2.
In an exclusive interview with Financial Express Digital, EB-5 immigration attorney Joey Barnett shared how the policy could affect immigrant investors already living in the United States and why many applicants now fear stricter scrutiny during the green card process.
Under the new guidance, foreign nationals seeking permanent residency may increasingly be expected to complete the Green Card process through consular processing abroad instead of Adjustment of Status from inside the United States, except in extraordinary circumstances. The policy has sparked concern among immigrant investors because one of the biggest advantages of the EB-5 program in recent years was the ability to file for adjustment of status concurrently while remaining in the US.
Barnett said the policy does not stop eligible applicants from filing adjustment of status applications. However, he warned that USCIS may now apply a tougher discretionary review process. “It does not stop an otherwise eligible applicant from filing a Form I-485. In practice, I think it means that USCIS may begin applying a much stricter discretionary framework to Form I-485 adjustment of status applications,” Barnett told Financial Express Digital.
Barnett added that this interpretation conflicts with long-standing immigration law and policy. “This mischaracterization is inconsistent 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 Appeals,” he said.
How could USCIS memo affect EB-5 investors already in US?
The EB-5 visa program allows foreign nationals to obtain a green card by investing at least $800,000 in qualifying US projects that create jobs.
However, Barnett said it remains unclear how aggressively USCIS will apply the new policy. “Remains to be seen. We have heard reports that USCIS offices didn’t know about the announcement until hours before it was made public, so we need to see USCIS guidance and how it is implemented,” he said.
He warned that applicants with negative immigration history or other issues may now face tougher review standards. “If you have negative factors that USCIS may weigh against granting your I-485 application, then you should be prepared to provide 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,” Barnett said.
He also urged applicants without legal support to seek professional help. “If you do not have an attorney, we recommend that you hire one to help you with this situation,” he said.
Barnett said most EB-5 investors with clean records and proper documentation may still remain in a strong position.
However, he spoke about one section of the memo that could create concern for some applicants. “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 a concurrent EB-5/adjustment submission is now considered a negative factor for AOS discretionary analysis. We need to see how USCIS interprets this,” Barnett said.
Despite the uncertainty, Barnett said investors currently planning to file from inside the United States should not panic or drastically change strategy. “I see no reason to change the current posture of any EB-5 application based on this announcement,” he said.
“Applicants can gather evidence to demonstrate that approving the adjustment of status is warranted under the totality of the circumstances and in the best interests of the United States,” he added.
Could the policy change discourage future EB-5 demand?
Barnett said the policy could discourage some future investors if USCIS applies the memo too strictly. “One of the biggest benefits created by the EB-5 Reform and Integrity Act of 2022 was the ability of immigrant investors to file adjustment of status concurrently,” he said.
He also warned about the risks investors may face if forced to leave the United States for consular processing abroad. “There may be substantial risk to the consular process if certain circumstances exist,” Barnett said.
He listed unlawful presence in the US, criminal offenses, immigration fraud concerns, and long visa bars as possible risks that could prevent some applicants from returning to the country. “Additionally, the normal processing of green cards at the US 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,” he said.
When asked whether some categories of EB-5 investors enjoy stronger protection under the new policy, Barnett said, “Not yet.”
Barnett also said applicants who already filed their I-485 applications would still face the same adjudication standards as new applicants. “No, they are subject to the same sort of adjudication standards as those filing today,” he said.
He questioned whether a USCIS policy memo can effectively override rights already granted under federal immigration law. “Well, that’s a big part of the argument against a strict implementation of this policy announcement… yes, the statute provides for discretion when adjudicating adjustments, but the law remains unchanged,” Barnett said.
“There is an entire section in USCIS Policy Manual about adjudicating discretionary benefits and how officers are supposed to look at balancing evidence,” he added.
The announcement has already created anxiety among immigrant investors and foreign nationals living in the United States. When asked whether his law firm had received worried calls from clients, Barnett replied, “Yes, of course!”
However, he urged investors not to panic. “Stay the course,” Barnett said.
“US immigration law and policy is always in flux, and you need strong legal representation to help navigate the changes that inevitably come,” he added.