USCIS Adjustment of Status EB-5 - What the 2025 Policy Memo Means for Concurrent Filers

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The Core Message of the Memo

The USCIS policy memo instructs adjudicators to exercise discretion when evaluating adjustment of status applications. The memo directs officers to weigh a totality of factors, both positive and negative, before approving an application. The guidance frames adjustment of status as a discretionary privilege and points to specific negative factors, such as unauthorized employment or a history of immigration violations, that could result in denial.

The memo does not alter the statutes that allow eligible foreign nationals to adjust their status to permanent resident while remaining in the United States. The EB-5 Reform and Integrity Act of 2022 permits concurrent filing of the I-526E immigrant petition and the I-485 application to register permanence or adjust status as long as a visa is available and current. This statutory provision is a core component of the modern EB-5 process for individuals contributing to the U.S. economy.

What Are the Implications for EB-5 Investors?

The impact of the memo is minimal for most EB-5 investors as long as they have maintained lawful status and have no negative factors in their immigration history. EB-5 applicants possess positive qualities that align with the discretionary factors outlined by USCIS.

Positive Qualities Inherent in EB-5

EB-5 investors present a case for adjustment of status based on several factors including the following:

• Economic contribution: the requirement of the EB-5 program is a capital investment in a U.S. commercial enterprise that creates and preserves at least 10 full-time jobs for U.S. workers. This economic benefit is a positive quality for EB-5 investors.
• Lawful employment and tax history: many EB-5 investors, especially those transitioning from H-1B or L-1, have a documented history of lawful employment, paying U.S. taxes, and contributing to local communities.
• Dual intent visas: individuals holding H-1B or L-1 visas are in dual intent classifications, meaning they are legally permitted to seek permanent residency while temporarily working in the United States. The memo acknowledges that holding these statuses is not incompatible with adjusting status.

Vulnerable Nonimmigrant Categories

The memo is focused on individuals who entered the United States on nonimmigrant visas that require nonimmigrant intent. These visas include B1/B2 tourist visas or F-1 student visas. For these applicants, the timing of their adjustment of status and their actions upon entering the country are subject to scrutiny. If an individual enters the United States and files Form I-485 to adjust status, adjudicators may question whether the applicant misrepresented their intent at the border. While the 60/90-day rule is no longer formal policy, the principle that action shortly after entry can indicate preconceived immigrant intent remains a consideration. F-1 students face similar scrutiny. Those who have spent time studying and working under optional practical training generally have stronger arguments for adjustment than recent arrivals.

Strategic Considerations for Pending and Future Applicants

EB-5 investors and legal counsel must adapt strategies to ensure applications articulate the positive factors warranting approval.

Proactive Documentation

For new I-485 filings, it is advisable to include a cover letter that details the applicant's positive equities. This should be a reasoned argument supported by documentation. Evidence can include:

• tax returns
• employment records
• proof of property ownership or rental history
• community involvement
• and the enrollment of children in U.S. schools

For applicants that are pending, investors should gather and maintain this documentation if USCIS issues a request for evidence asking the applicant to justify their adjustment of status under the discretionary framework. Having these records available expedites a response.

Consular Processing as an Alternative

Where an adjustment of status application faces a risk of denial, or if an investor needs to travel abroad, consular processing is an alternative. Once the I-526E petition is approved, the investor can apply for an immigrant visa through the National Visa Center and attend an interview at a U.S. consulate or embassy in their home country.

While consular processing requires an investor to leave the United States for several weeks, it bypasses the discretionary hurdles introduced by the adjustment of status memo. Investors can pursue both paths simultaneously in certain situations, though this requires coordination to avoid abandoning one application by traveling or taking conflicting actions.

Memo Final Thoughts

The USCIS policy memo introduces discretionary review to the adjustment of status process and requires adjudicators to weigh positive and negative equities. The statutory foundation of the EB-5 program and the right to concurrently file established by the RIA remain intact. EB-5 investors generally possess positive equities through financial contribution and through other equities. By documenting these factors and considering the timing and method of their applications, investors can navigate this guidance and continue their path toward U.S. permanent residency through the EB-5 program.