Trump’s Green Card memo: What ‘economic benefit’ means for immigrants

USCIS spokesperson Zach Kahler subsequently emphasised in a statement to Business Insider that Green Card applicants who provide “an economic benefit or otherwise are in the national interest will likely be able to continue on their current path, while others may be asked to apply abroad depending on individualised circumstances.”

Despite repeated remarks from US officials, Green Card hopefuls remain in the dark about what this shunning of a longstanding policy actually entails, and how these specified “exceptions” fit in. These complications have only deepened as the USCIS’s firm definition of “economic benefit” remains unclear.  However, some immigration attorneys recently spoke to FinancialExpress.com, shedding light on how the recently announced changes have sent immigrant applicants and legal practitioners alike into overdrive.

Immigration expert reveals who is better suited under the ‘economic benefit’ exception

Mentions of “economic benefit” and “national interest” further complicate the situation, according to Sonal Sharma, the founding member of the US-based Sharma Law Associated LLC. Specialising in both temporary non-immigrant visa petitions and permanent employment and family-based immigrant visa green card applications, the immigration lawyer for high-skilled talent told FinancialExpress.com that these clauses are “not found in Immigration and Nationality Act (INA) Section 245 (a) or its regulations.”

The specified section of the Immigration and Nationality Act allows certain foreign nationals physically present in the US to adjust status to that of a lawful permanent resident (LPR), according to USCIS.

Sharma highlights that the law in question lists only three requirements for adjustment: inspection and admission, an available immigrant visa, and admissibility. On the other hand, the immigration expert points out that even ‘national interest’ is used in a different context in immigration law.

“The national interest waiver under Section 203(b)(2)(B) has clear USCIS guidance, set criteria, and years of precedent,” Sharma notes. “Bringing this idea into adjustment discretion, without new rules or standards, leaves applicants and lawyers unsure how to judge their cases. This will likely lead to different results at different field offices.”

Further detailing if this is used as a standard by field offices, the immigration expert says, “Some non-immigrant categories are naturally better suited than others.” In her experience, H-1B and L-1A visa holders have the “strongest position” because these categories demonstrate “dual intent and show both specialised skills and documented economic contribution.”

Next in line are O-1 visa holders in science, arts, business, or athletics. Lawyer Sonal Sharma says, “USCIS has already decided these people have extraordinary ability or achievement. It is hard to argue that someone found to be extraordinarily able does not serve a national interest. The main evidence needed at the I-485 stage is already provided by the earlier approval.”

Similarly, she points out that while many F-1 OPT and STEM OPT holders work in fields contributing to the economy, “F-1 is a single-intent visa, and USCIS will closely examine immigrant intent at entry.”

Thereafter, Sharma puts E-2 treaty investors, E-3, and TN holders on the descending ladder for having a “reasonable argument for economic benefit.” Acknowledging that, while the US Congress created these visas to recognise their economic roles, the immigration lawyer emphasises, “these categories do not have dual intent or a USCIS-approved petition showing economic need like H-1B and L-1 do.”

“A student who has spent years showing economic contribution may still face problems if their entry intent is questioned at the I-485 stage,” she adds. “The issues of economic benefit and preconceived intent happen at the same time, and the memo does not address this conflict.”

Sharma further calls out the “family-based gap” the new policy memo creates by placing a serious hurdle in the path of a spouse or child of a US citizen, who “cannot easily show economic benefit.”

Throwing more light on the issue, she says, “Family unity has always been an important factor, and immediate relatives make up the largest group of adjustment applicants. Looking only at economic benefit puts them at a disadvantage, and the memo does not seem to consider this.”

Immigration attorney shares key takeaways for EB-5 Investors

The US Congress created the EB-5 Immigrant Investor Program in 1990 to stimulate the American economy through job creation and capital investment by foreign investors. Often viewed as a Green Card pathway for high-net-worth individuals, the program requires eligible applicants to make necessary investments in a commercial enterprise in the US and create or preserve 10 permanent full-time jobs for qualified US workers.

This particular program especially emerged as an attractive option for applicants already in the country since the EB-5 Reform and Integrity Act (RIA) of 2022 allowed the concurrent filing of I-526E and Form I-485, which helped them obtain work authorisation and travel permits within months. Those attached to the EB-5 Investor program must invest a minimum of $800,000 in a Targeted Employment Area (TEA) or rural area, or $1.05 million elsewhere. Since the whole visa program hinges on creating economic opportunities in the US, one would expect it to qualify under the “economic benefit” exception.

Aarushi Gupta, Managing Director, India Operations, Donoso & Partners LLC, told FinancialExpress.com, “EB-5 investors are among the most thoroughly vetted participants in the US immigration system. Their investments create jobs, stimulate economic activity, and contribute to local communities across the United States.”

She further emphasised that while the Trump government’s recent memo doesn’t alter the legal requirement of the EB-5 program, “investors should be prepared for increased scrutiny and should proactively document the positive economic and personal factors that support favourable discretionary consideration.”

Ignacio Donoso, Managing Partner, Donoso & Partners, LLC, added in a statement, “The memorandum reinforces USCIS’s existing discretionary authority rather than creating a new statutory standard. Our firm is actively working with clients to prepare comprehensive evidence packages that highlight the economic benefits they bring to the United States. We remain committed to helping investors navigate these developments while continuing to advocate for fair and lawful adjudication of EB-5 cases.”

Explaining how the Trump admin’s policy memorandum had impacted the operations of the US-based firm that has assisted thousands of clients with immigration law matters, Gupta affirmed, “As a result of the new memorandum, Donoso & Partners, LLC is closely reviewing how USCIS may evaluate Adjustment of Status applications filed by EB-5 investors.”

“Based on our initial reading, USCIS may place increased emphasis on whether an applicant presents a positive economic profile and whether there are factors that could lead the agency to conclude that the individual may become a public charge in the future,” she added.

Shedding more light on how EB-5 applicants have historically followed protocol, Gupta, who is also a Forbes Top 100 Lawyers awardee, noted, “most EB-5 investors residing outside the United States have completed consular processing following approval of their immigrant petition. In India, for example, immigrant visa interviews are generally conducted at the U.S. Consulate in Mumbai, where applicants are subject to extensive background screening and questioning.”

Akin to USCIS’s “case-by-case basis” admission, the India-based immigration expert said that while it has been “uncommon for EB-5 Adjustment of Status applicants to be interviewed” since the EB-5 Reform and Integrity Act of 2022 was enacted (and even before its passage), “USCIS retains the authority to schedule interviews and request additional evidence whenever it deems necessary.”

She further divulged that as the US government has doubled down on exercising discretionary authorities, “applicants should expect closer examination of their personal background, employment history, financial profile, and any criminal history.” Consequently, Adjustment of Status applicants could face additional scrutiny, “including Requests for Evidence (RFEs) or interviews focused on discretionary factors identified in the memorandum,” Donoso & Partners, LLC’s Managing Director of India Operations added.

The Forbes Top 100 Lawyers awardee also told the Financial Express Digital that her business immigration law firm is “evaluating the types of supplementary evidence that may help demonstrate an investor’s economic contributions, financial stability, and overall positive equities.” Their team hasn’t ruled out the possibility that certain aspects of the policy memorandum could end up facing legal challenges, “including arguments that certain provisions constitute substantive rulemaking without compliance with the requirements of the Administrative Procedure Act (APA).”

Disclaimer: This article is for general informational purposes only and does not constitute legal, immigration, or tax advice. Immigration laws and government policies are subject to frequent change without notice. While we strive to provide accurate updates, readers are strongly advised to verify the latest requirements with the official embassy, consulate, or government portal of the respective country. Financial Express is not responsible for any decisions made based on this information. For personalised guidance, please consult a qualified immigration attorney or a certified professional advisor.