The May 2026 USCIS memo (PM-602-0199) did not eliminate adjustment of status, and it did not end EB-5 concurrent filing.
On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, and the accompanying press release said the agency would grant adjustment of status “only in extraordinary circumstances.” That single phrase sent a shockwave through nearly every corner of U.S. immigration practice: immigration attorneys suddenly fielding a flood of client calls, spouses of U.S. citizens, parents of U.S.-born children, F-1 students and recent graduates on OPT, H-1B and L-1 professionals, the employers sponsoring them, physicians and healthcare workers on temporary visas, and of course EB-5 investors.
For an EB-5 investor with a pending or planned Form I-485, any limit on adjustment, real or implied, raises immediate and fair questions. This article series answers them directly, and it will be kept current as USCIS releases implementing guidance and as the first adjudications under the memo are reported.
The narrative appears to overstate what the policy goals are. The statute did not move. INA Section 245, including the EB-5 concurrent-filing right Congress wrote into the EB-5 Reform and Integrity Act is untouched. What changed is how officers are told to exercise their discretion: heavier scrutiny, a higher bar to approval, and a stated preference for consular processing. Of everyone this memo touches, EB-5 investors here on a dual intent visa appear to be among the best-positioned to meet the standards of the memo, and EB-5 adjustment of status rests on a statutory footing the memo did not touch.
Behring Regional Center is a USCIS-designated EB-5 regional center with a San Francisco Bay Area real estate development track record and a litigation history that helped shape today’s program, including the federal settlement that preserved regional center approvals after the EB-5 Reform and Integrity Act of 2022. Its team also includes a former adjudicator from the USCIS Immigrant Investor Program Office, where these petitions are decided. That combination of operating experience, program-level legal history, and a view from inside the adjudication process informs the analysis that follows.
To be clear, this article series aims to highlight the questions worth discussion with your immigration attorney.
What the memo actually says, and what the press release added
PM-602-0199 is a policy memorandum, not a regulation. It did not amend INA Section 245, it did not create any new bar to eligibility, and it did not close any green card category. What it does is instruct officers to treat adjustment of status as a discretionary benefit rather than a routine step, and to weigh the whole record before approving a Form I-485 even when every technical requirement is met.
The press release went further than the memo it described. It announced that USCIS would grant adjustment “only in extraordinary circumstances,” and the agency spokesman told reporters that a foreign national in the United States temporarily should return home to apply. That sentence is the source of most of the alarm. It also does not appear in the operative guidance. Several firms that read both documents have flagged the gap between the announcement and the text, and at least one called the spokesman’s public statement misleading.
A second statement from the same spokesman matters more for EB-5 readers than the headline did. Later that day he clarified that applicants whose cases provide an economic benefit or serve the national interest will likely continue on their current path, while others may be asked to apply abroad based on their individual facts. Hold that line, because it describes the EB-5 investor almost exactly, and putting that economic benefit on the record is where the case gets built.
Two practical points close this section. Officers adjudicate against the memo, not the press release, so the operative standard is the discretionary analysis written into the document itself. And the guidance took effect immediately and reaches every pending and future I-485, which is why investors with cases already on file are asking what it means for them.
The new discretionary bar
Under the memo, meeting the eligibility requirements is the start of the analysis, not the end of it. Officers are told to look at the totality of the circumstances and decide whether the applicant merits a favorable exercise of discretion. The standard comes from a 1974 Board of Immigration Appeals decision, Matter of Blas, which says an applicant must show unusual or even outstanding equities to outweigh adverse factors. The memo adds that the absence of adverse factors, by itself, does not establish those equities.
The memo also names the move that now counts against an applicant. Choosing to adjust status inside the country, when consular processing abroad is available, is treated as an adverse factor in the weighing. That single instruction is what turns adjustment from a routine filing into a request the applicant has to affirmatively justify.
Practitioners reading the memo are pulling the same factor list, and investors should know what an officer is now weighing. On the unfavorable side: immigration history and lawful status compliance, unauthorized employment or overstay, fraud or willful misrepresentation to any government agency, conduct inconsistent with the purpose of a temporary admission, and failure to depart when expected. On the favorable side: family ties, a clean immigration history, good moral character, and whether granting the case serves the best interests of the United States, and this is where your EB-5 attorney would likely highlight the ongoing job creation of your Behring investment. The memo leaves room for any other relevant factor on either side, which is where the case-by-case uncertainty lives.
Dual intent and footnote 20
Dual-intent categories like H-1B and L-1 are better positioned than most, because holding a temporary visa and the intent to become a permanent resident at the same time removes the purpose mismatch that weighs against a single-intent case. The memo is explicit that this is not a free pass. At page 5, footnote 20, it states that maintaining lawful status in a dual-intent category is not sufficient, on its own, to warrant a favorable exercise of discretion. Dual intent helps; it does not decide the case.
Single-intent holders are the most exposed, since staying to adjust can be read as inconsistent with why they were admitted. For an H-1B or L-1 holder weighing an EB-5 investment, that contrast is worth understanding, and our guide on moving from H-1B to EB-5 walks through how the categories interact. We cover the discretion angle in full in dual intent, footnote 20, and EB-5.
Why EB-5 adjustment of status stands apart
EB-5 adjustment of status has a statutory anchor most applicants do not. Section 245(a) of the INA, the provision that authorizes adjustment, was not amended by the memo. On top of that, the EB-5 Reform and Integrity Act of 2022 added Section 245(n), which says that when an approved EB-5 petition would make a visa immediately available, the investor’s adjustment application is properly filed whether it is submitted with the petition or after it. Congress wrote concurrent filing for EB-5 into the statute itself.
There is an important limit to be honest about. Section 245(n) controls whether the application is properly filed. It does not guarantee approval, and it does not strip USCIS of its authority over admissibility, eligibility, visa availability, or discretion. The right to file concurrently is secure. The discretionary grant still has to be earned, which is what the rest of this article is about.
The same 2022 law folded EB-5 into the Section 245(k) provision, which can excuse up to 180 days of certain status violations at the adjustment stage. The takeaway is structural. An EB-5 investor filing in the United States is not sidestepping a process Congress preferred. They are using a process Congress built for them. The memo’s central adverse factor, choosing adjustment over an available consular route, lands differently against a category the statute designed for concurrent in-country filing. For the mechanics, see our explanation of the benefits of concurrent filing and how the 245(k) exemption works.
What this means for an EB-5 investor with a pending I-485
Start with what did not change. The right to file concurrently comes from Section 245(n) and is intact, a pending case stays pending and continues to be adjudicated, and employment authorization and advance parole tied to it are processed in the ordinary course. What changed is the bar. Meeting the requirements is no longer the finish line, so the constructive move is to build the affirmative record into the filing rather than leave gaps for an officer to fill unfavorably.
This is where an EB-5 investor holds a card almost no other applicant can play. The memo directs officers to weigh the best interests of the United States and to look for outstanding equities, and an EB-5 investor can put exactly that on the record: capital placed at risk in the U.S. economy and the full-time American jobs that capital is required to create. That is the spokesman’s own “economic benefit or national interest,” in documented, dollars-and-jobs form. The specific factors to document, from the $800,000 investment that answers a public-charge concern on its face to a maintained H-1B or L-1 status, are laid out in how to strengthen a concurrent EB-5 I-485. The standard is discretionary and case-by-case, so work the specifics with qualified immigration counsel. Behring Regional Center structures and documents the capital and the job creation; it does not give legal advice.
The question that flips the objection: why no adjustment makes EB-5 stronger
A fair investor asks the blunt version: if adjustment is getting harder, why pursue EB-5 at all? The logic turns over when you follow it one step. A limit on adjustment is category-neutral, so it applies to EB-2 and EB-3 the same way it applies to EB-5, and consular processing at the end becomes the common path for everyone. Once the final step is identical, the only variable left is how fast you reach a current priority date.
That is where the math turns decisive. The June 2026 Visa Bulletin put EB-2 India back at a final action date of September 1, 2013, a retrogression of more than ten months in a single month, while the three EB-5 set-aside categories stayed current for every country, including India and China. Removing adjustment does not shrink the EB-5 advantage for a backlogged applicant; it removes the one feature that made the slower path look comparable. This is comparative education, not a prediction, since priority dates move with each bulletin. The full comparison and the numbers are in EB-5 and the EB-2 backlog.
What happens next, and what not to do
The memo is already drawing legal challenges, on grounds that are not hard to predict: the statutory authority question, the argument that the policy reinterprets congressional intent, the Administrative Procedure Act problem that a substantive shift was issued without notice-and-comment rulemaking, and the retroactivity concern that it reaches cases already on file. For an investor whose case is delayed, a writ of mandamus can ask a federal court to compel a decision on an unreasonably stalled application. We cover the litigation outlook, the APA argument, and how mandamus has worked for investors in EB-5 mandamus and litigation.
The most useful guidance right now is restraint. The situation is days old and still developing, so do not leave the United States, withdraw a pending I-485, or stop working based on a headline, since those moves can forfeit a position the statute still protects. The right next step is a conversation with your immigration attorney about your specific facts, and a plan to strengthen the record on a case you decide to pursue.
Where this leaves you
The headline was loud, and the change is real, but the law that protects an EB-5 investor’s path did not move. Adjustment is harder to win and easier to lose with a weak filing, which puts the focus where investors can actually act, on the strength of the record and on advice tailored to the facts. EB-5 investors, with documented capital and documented jobs, start that conversation holding more than most.
If you have a pending EB-5 case or are weighing one, talk with your immigration attorney, and reach out to our team to learn how Behring Regional Center structures and documents EB-5 investments, and see how to invest in EB-5 for the structure side.
This article is general information about a developing area of law. It is not legal advice and does not create an attorney-client relationship. EB-5 investments are securities and involve risk, including the risk of loss and the risk that immigration benefits may not be granted. Nothing here is an offer to sell or a solicitation to buy any security. Consult qualified immigration counsel and review the offering documents before making any decision.