On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, titled “Adjustment of Status is a Matter of Discretion and Administrative Grace, and an Extraordinary Relief that Permits Applicants to Dispense with the Ordinary Consular Visa Process.”
The memo directs USCIS officers to treat adjustment of status (Form I-485) as a discretionary, “extraordinary” form of relief rather than a routine administrative step. It is effective immediately and applies to all pending and future I-485 applications.
For EB-5 investors already in the United States, or planning to be, here’s what you should know.
Breaking Down the Memo
The memo does not change any statute or regulation. It does not eliminate adjustment of status, and it does not create new eligibility requirements.
What it does is reframe how USCIS officers are expected to approach I-485 cases. Officers are now instructed to treat adjustment of status as “extraordinary” rather than ordinary, apply heightened scrutiny when an applicant’s conduct appears inconsistent with the purpose of their temporary admission or nonimmigrant status, and weigh negative factors such as immigration violations, overstays, and unauthorized employment against positive factors in the totality of the circumstances. Crucially, the memo rejects any presumption of approval, even where an applicant meets all technical eligibility requirements.
In short, eligibility alone may no longer be enough. Applicants will need to affirmatively demonstrate that they merit a favorable exercise of discretion.
Paul Chen of Meyer Law Group (MLG), one of the leading EB-5 immigration firms in the country, characterizes this as a significant departure from precedent. “The USCIS has issued a policy coming from the Trump Administration to approve adjustment of status cases only under extraordinary circumstances,” he told us. “At Meyer Law Group, we do not feel this is consistent with current and long-standing immigration policy.”
The practical impact, according to Chen, will be broad:
“Almost all current adjustment of status cases will be negatively affected or must be reevaluated for risk analysis, including cases filed by EB-5 investors who work on various non-immigrant work visas, normal family-based adjustment cases with immediate relatives, and otherwise eligible employment-based immigration cases.”
He went on to add that “this policy is easily one of the most restrictive policies issued by the Trump Administration and would most likely be stopped under a federal court injunction.”
Considerations for EB-5 Investors
Even with heightened discretionary scrutiny, several aspects of the memo are worth flagging for EB-5 investors specifically.
Congress expressly authorized EB-5 concurrent filing. Under INA § 245(n), added by the EB-5 Reform and Integrity Act of 2022, Congress specifically created a pathway for EB-5 investors to file Form I-485 concurrently with their I-526E petition. This is a statutory authorization, not an administrative accommodation.
The memo acknowledges that dual-intent categories remain compatible with adjustment of status. Categories such as H-1B and L-1 are referenced in the memo as compatible with pursuing adjustment of status, and many EB-5 investors hold these visas. That said, the memo’s footnote 20 makes clear that maintaining a dual-intent nonimmigrant category is not, by itself, sufficient to warrant a favorable exercise of discretion. Discretionary analysis still applies.
Pending applications may have a non-retroactivity argument. Under general principles of administrative law, new agency policy is typically not applied retroactively to cases filed in reliance on prior policy. Investors with already-pending I-485s should consult their immigration attorney to understand how this may apply to their case.
The Bottom Line
The memo is significant, but it is not the end of adjustment of status, and it is not a category-specific restriction on EB-5. Implementing guidance from USCIS has not yet been published, legal challenges are anticipated, and the industry’s response is organized and active.
What it does mean is that EB-5 I-485 filings are likely to become more evidence-driven going forward. A strong filing may now need to document more than just EB-5 eligibility and admissibility. It may also need to explain why the applicant merits adjustment as a matter of discretion.
For investors weighing concurrent filing versus consular processing, the right approach depends on the specific facts of each case, and this is a conversation to have with experienced EB-5 immigration counsel. The message is straightforward: this is a moment to be thorough, well-counseled, and intentional about how a case is prepared. It is not a moment to panic.
At EB5 Coast to Coast, we’ll continue to monitor and share updates as USCIS publishes implementing guidance. Subscribe to our newsletter to stay informed.
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Disclaimer: This blog post is for informational purposes only and does not constitute legal advice. Investors should consult qualified immigration counsel for advice specific to their situation. This is neither an offer to sell nor a solicitation to buy securities; such an offer can only be made through a complete Private Placement Memorandum.
