If you hold H-1B or L-1 status and have an EB-5 case in motion, the May 2026 USCIS memo (PM-602-0199) puts you in a stronger position than most adjustment applicants, though it does not make the case automatic.
EB-5 dual intent is the reason these categories land more gently under the new discretionary standard than any other status. The memo reframes adjustment of status as a discretionary benefit and tells officers to weigh the whole record, and there is one footnote every H-1B and L-1 investor should read closely. For the full picture of what the memo did, start with our breakdown of what PM-602-0199 changed.
Why EB-5 dual intent helps
An H-1B or L-1 worker may hold a temporary visa and the intent to become a permanent resident at the same time. EB-5 dual intent means adjusting status from these categories does not carry the purpose mismatch that weighs against single-intent applicants. The memo’s central adverse factor is choosing to adjust inside the country when consular processing abroad is available, on the theory that the applicant is converting a temporary stay into a permanent one. A dual-intent holder was never limited to a temporary purpose, so that large negative factor falls away. Our step-by-step H-1B to EB-5 guide walks through how the two statuses fit together.
What footnote 20 actually says
The memo does not stop there. At page 5, footnote 20, it states that maintaining lawful status in a dual-intent category such as H-1B or L-1 is not sufficient, on its own, to warrant a favorable exercise of discretion. Read it carefully. Dual intent removes a major negative. It does not, by itself, supply the affirmative equities the officer now looks for, so the rest of your record still has to carry weight. The strongest files pair dual intent with documented capital and job creation, which we cover in how to strengthen a concurrent EB-5 I-485.
Who is most exposed
The applicants facing the steepest version of the new test are single-intent holders. F-1 students, B-1 and B-2 visitors, and similar categories were admitted for a defined, temporary purpose, and staying to adjust can be read as inconsistent with that purpose. If you are weighing a move from one of these categories into EB-5, the timing of your entry and your filing deserves careful review with counsel. The Section 245(k) status forgiveness rules and the concurrent filing mechanics both matter to that timing.
How an H-1B or L-1 investor builds the record
For a dual-intent investor the practical guidance is consistent. Keep your underlying status valid where you can, both as a fallback and as a favorable factor on the record. Treat the I-485 as a discretionary submission that documents your equities. If your priority date is the pressure point, our note on EB-5 and the EB-2 backlog explains why the timeline math still favors EB-5, and if a case stalls, our writeup on how mandamus has worked for delayed cases and our guide to EB-5 mandamus and the litigation path are covered separately.
What this means for your filing
How heavily an officer weighs each factor will become clearer only as the first adjudications come in. An H-1B or L-1 investor starts ahead because EB-5 dual intent neutralizes the memo’s main concern, though the file still has to do the rest. Our team includes a former adjudicator from the USCIS Immigrant Investor Program Office, so we read these files the way the officer will. Review your specific status and timing with your immigration attorney, see how to invest in EB-5 for the structure side, and reach out to our team with questions about how Behring Regional Center documents an investment.
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. Consult qualified immigration counsel before acting.