USCIS tightens green card filings from within the U.S.: potential impact on EB-5 investors

U.S. Citizenship and Immigration Services (USCIS) announced on May 22 that foreign nationals currently in the United States on temporary visas will, in most cases, need to leave the country and apply for a green card from abroad through the consular process.

The change is tied to Policy Memorandum PM-602-0199 issued on May 21. Under this guidance, adjustment of status (AOS)—the route that allows people to change status while remaining inside the U.S.—is being treated as an “extraordinary measure” rather than a standard option. USCIS instructs officers to grant AOS only in exceptional circumstances.

USCIS also stressed that the underlying rule is meant to track the original intent of the statute. In its explanation, the agency said that a temporary visitor in the U.S. seeking a green card generally must return to their home country to file, unless the case is recognized as “extraordinary.”

At the same time, the legal foundation—Section 245 of the Immigration and Nationality Act (INA)—has not been revised. What has shifted is the discretion standard used to evaluate AOS requests.

“Preconceived immigrant intent” as a deciding factor

For decades, AOS enabled eligible applicants already in the U.S. to move to permanent resident status without departing. According to figures cited by former USCIS senior adviser Doug Rand during the Biden administration, roughly 600,000 AOS applications are filed each year.

Other estimates are even higher. In a blog post, David Bier of the Cato Institute suggested that the number of pending AOS filings could reach about 1.2 million.

Under the new approach, USCIS expects the consular process to function as the default pathway. Applicants who want to change status while still in the U.S. must be prepared to demonstrate “unusual or even outstanding circumstances”—a framework drawn from Matter of Blas (1974).

Officers, in particular, are expected to evaluate factors such as whether the applicant maintained lawful status, worked without authorization, overstayed their permitted time, and whether there was “preconceived immigrant intent” at the time of entry on the temporary visa. Importantly, USCIS notes that the absence of negative factors alone does not guarantee approval of AOS.

An “economic benefit” carve-out

For the investment migration market, an important signal came from USCIS representative Zach Kahler. He described a potential “ceiling” of exceptions: cases that deliver economic benefits or otherwise align with U.S. national interests may still be allowed to proceed under the current handling approach.

However, USCIS did not clarify what exactly counts as an “economic benefit,” and it offered no thresholds, criteria, or list of visa categories that might qualify. The question remains open.

What this could mean for EB-5 investors

Notably, EB-5 is not mentioned in the memorandum. That omission creates uncertainty: investors are trying to understand whether their cases could fit within the “economic benefit” exception.

In practice, EB-5 became more attractive for many applicants after the EB-5 Reform and Integrity Act (RIA) of 2022, which enabled concurrent filing—submitting Form I-526E and Form I-485 at the same time. That change helped investors receive work authorization and travel documents while in the U.S.

On one hand, EB-5 is fundamentally tied to economic impact: applicants invest a minimum of $800,000 (or $1.05 million outside targeted employment areas) and must create at least 10 jobs in the U.S. If “economic benefit” is interpreted broadly, EB-5 could theoretically align with the language of the exception.

On the other hand, the focus on “preconceived immigrant intent” may undermine certain scenarios. For example, an F-1 student who entered to study and later filed an EB-5 petition could face closer scrutiny of “dual intent” issues in a category where it may be limited or viewed as controversial.

In commentary on the situation, the immigration law firm WR Immigration noted that USCIS has acknowledged the compatibility of certain classifications with dual intent when filing for AOS—citing H-1B and L-1 as examples. EB-5 was not included in those examples.

Broader risks and a potential “domino effect”

Immigration attorneys caution that the fallout may not be limited to switching filing routes. Shev Dalal-Dheini, senior director of government relations at the American Immigration Lawyers Association (AILA), told Associated Press that USCIS appears to be trying to reverse an approach built over decades for adjustment of status.

David Bier (Cato Institute) also pointed to what he called a “mechanical trap.” Departing the U.S. can trigger 3- or 10-year bars on reentry for individuals who have accrued unlawful presence. Even short periods out of status while waiting for a green card decision may make consular processing risky—because leaving could render the applicant ineligible for the visa they relied on to continue the process.

Timing issues tied to consular appointments add another layer of uncertainty. In some countries, waiting for an interview can exceed a year. For applicants in regions where U.S. diplomatic missions are closed or operate with restrictions (for example, in Afghanistan), the situation can be even more difficult: there may simply be no available platform to file.

A tense immigration climate, even before this

The memorandum comes as legal immigration enforcement has tightened under the Trump administration. In late 2025, USCIS introduced stricter controls and enhanced discretionary scrutiny for applicants from 19 “high-risk” countries, including Iran, Venezuela, Cuba, Haiti, and others.

In effect, PM-602-0199 raises the bar for everyone, regardless of citizenship.

For EB-5 specifically, uncertainty is compounded by timing. The administration’s proposed “Gold Card” program—discussed as a potential successor to EB-5—remains undefined both legally and operationally. EB-5 regional centers face their own deadlines: authorizations expire in September 2027, while grandfathering provisions protect petitions filed before September 2026.

Investors are therefore dealing with a narrowing window: pressure is coming from both the statutory framework of the program and the AOS pathway, which has become a crucial tool for many applicants.

USCIS also has not specified when the policy will take effect, whether it will apply to already-filed applications, or how it will interact with the RIA’s provisions on concurrent filing. Several immigration firms say litigation is likely.

Expert note: USCIS adjudication for green card-related matters often hinges less on the headline category and more on how the file is documented—especially for issues tied to intent and eligibility. In practice, applicants who can clearly establish a consistent timeline (entry purpose, compliance with visa terms, and the evolution of their plans) may be better positioned even when the policy language becomes stricter. This is why attorneys frequently stress building a “coherent record” rather than relying on a single argument about economic impact—particularly in AOS cases where intent-related questions carry extra weight.

Are you planning a move to the US through investment-based routes and want to reduce status risks? USCIS’s updated approach to adjustment of status (AOS) for people temporarily in the country may also affect applicants considering capital-linked immigration pathways. Digital Nomad can help you assess your case and choose a more resilient plan based on current requirements: https://digital-nomad.gr/en/goldenvisa

Our Telegram channel about various types of Greek residence permits, digital nomad programs, and the Greek Golden Visa: @digitalnomadgr