On May 21, 2026, USCIS issued policy memo PM-602-0199 signaling that many individuals who have long been eligible to adjust status in the United States may instead be required to complete consular processing abroad, with limited and still-unclear exceptions. For EB-5 immigrant investors, the question is urgent: does your investment category grant you protection from this policy shift?
What changed
USCIS clarified that Adjustment of Status (AOS) under INA §245 is an “extraordinary form of relief” rather than an automatic entitlement. The memo reminds officers and the public that adjustment of status under section 245 of the Immigration and Nationality Act (INA) is a matter of discretion and administrative grace not designed to supersede the regular consular processing of immigrant visas.
The policy does not ban adjustment of status outright. Rather, it reframes how applications may be assessed, placing greater weight on discretionary considerations and overall applicant equities. The memo does not contain a prospective-only carve-out for already-pending cases, and the absence of a grandfathering provision strongly suggests it applies to already pending I-485 applications.
Why it matters
For EB-5 investors, the practical impact depends on your current filing status:
- Already approved I-485: If your I-485 is already approved, you are most likely not impacted by this memo.
- Pending I-485 with approved EAD and advance parole: If your I-485 is pending with an approved EAD and Advance Parole, you should be able to continue renewing your EAD and Advance Parole as usual. The memo does not affect work authorization unless the underlying I-485 is denied.
- Travel risk: You should avoid non-essential international travel for now, as departure could complicate your pending adjustment claim.
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.
However, statutory eligibility does not guarantee approval under the new discretionary lens. I-485 applicants may face additional USCIS scrutiny in the form of increased Requests for Evidence (RFEs) or additional questions at interviews about why adjustment, rather than consular processing, is warranted in their particular case.
Way forward
If you are an EB-5 investor with a pending or planned adjustment of status application:
- Document discretionary factors now: Gather evidence of ties to the United States, family relationships, employment history, and community involvement. The memo directs officers to evaluate “the totality of the circumstances.”
- Consult your attorney on visa availability: Confirm whether an immigrant visa is immediately available under the current visa bulletin. Availability strengthens your INA §245(n) protection argument.
- Review your I-485 and supporting documents: Ensure your case affirmatively establishes EB-5 eligibility and addresses any potential negative factors the memo’s discretionary standard may raise.
- Monitor for USCIS guidance on EB-5 carve-outs: USCIS may provide policy guidance specific to certain adjustment of status categories or discrete populations of aliens to aid officers in identifying those applications that may or may not warrant this act of grace and exception to the regular consular process. EB-5 may be one such category, but no specific guidance has been published yet.
Disclaimer
This article is provided by Fola, a technology and information company—not a law firm. This is not legal advice. Immigration law is fact-specific, and the interaction between the EB-5 statute (INA §245(n)) and the new discretionary standard is still being tested in practice. Consult a licensed immigration attorney licensed in your state before making any filing decisions. USCIS policy can change without notice; verify all guidance against the primary source (PM-602-0199 and USCIS’s official memos) and the USCIS website.