US Citizenship and Immigration Services (USCIS) on May 22 announced that foreigners living in the United States on temporary visas must, in most cases, leave the country and apply for a green card from abroad.
Policy Memorandum PM-602-0199, dated May 21, reframes adjustment of status (AOS) as “extraordinary relief” rather than a standard processing option, directing officers to grant it “only in extraordinary circumstances.”
“We’re returning to the original intent of the law,” USCIS wrote in its announcement. “From now on, an alien who is in the U.S. temporarily and wants a Green Card must return to their home country to apply, except in extraordinary circumstances.”
The underlying statute, Section 245 of the Immigration and Nationality Act (INA), has not changed. What changed is the discretionary standard officers will apply when adjudicating applications.
“Preconceived Immigrant Intent”
For decades, AOS allowed eligible foreigners already on US soil to convert their temporary status into lawful permanent residence without leaving the country. Approximately 600,000 people file for this conversion each year, according to Doug Rand, a former senior advisor at USCIS during the Biden administration, speaking to the Associated Press.
The Cato Institute’s David Bier has placed the number of pending applications at approximately 1.2 million.
Under the new guidance, USCIS officers must treat consular processing abroad as the default pathway. Applicants who wish to adjust status from within the US will need to demonstrate “unusual or even outstanding equities,” a standard drawn from a 1974 Board of Immigration Appeals decision, Matter of Blas.
Officers are directed to weigh factors including whether the applicant maintained lawful status, worked without authorization, overstayed a visa, or harbored “preconceived immigrant intent” when entering on a temporary visa. The absence of negative factors, the memo states, does not by itself justify granting the relief.
The “Economic Benefit” Exemption
USCIS spokesperson Zach Kahler offered one carve-out that will interest the investment migration market.
“While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path,” Kahler told Business Insider. Others “may be asked to apply abroad depending on individualized circumstances.”
How USCIS will define “economic benefit” remains unspecified. The agency provided no criteria, no threshold, and no list of qualifying visa categories.
What This Means for EB-5 Investors
The memo does not mention the EB-5 Immigrant Investor Program by name. That silence creates a problem.
EB-5 investors who are already in the US on temporary visas (F-1, H-1B, E-2, or others) have increasingly relied on AOS, particularly since the EB-5 Reform and Integrity Act (RIA) of 2022 enabled concurrent filing of Form I-526E and Form I-485. Concurrent filing allowed investors to obtain work authorization and travel permits within months, a feature that made the EB-5 route materially more attractive to applicants already residing in the country.
Whether those investors fall under the “economic benefit” exemption is an open question. On one hand, the entire premise of the EB-5 program is economic: applicants invest a minimum of US$800,000 (US$1.05 million outside targeted employment areas) and must create at least ten American jobs. If any visa category constitutes an “economic benefit,” EB-5 would seem to qualify.
On the other hand, the memo’s language around preconceived immigrant intent could cut the opposite direction. An F-1 student who enters on a study visa and subsequently files an EB-5 petition may face scrutiny for harboring dual intent in a visa category that does not permit it.
In an employer advisory published Friday, immigration law firm WR Immigration noted that USCIS “expressly acknowledges that dual-intent classifications remain compatible with pursuing adjustment of status,” citing H-1B and L-1 holders as “likely less impacted.” EB-5 was absent from that list.
Broader Concerns
Immigration attorneys warned of cascading consequences beyond the immediate disruption. Shev Dalal-Dheini, senior director of government relations at the American Immigration Lawyers Association (AILA), told the Associated Press that USCIS was attempting to “upend decades of processing of adjustment of status.”
Writing on the Cato Institute’s blog, Bier flagged a mechanical trap in the new approach: leaving the US can trigger three- or ten-year bars on reentry for anyone who accrued unlawful presence. For applicants who overstayed even briefly while waiting for their green card adjudication, departing to apply from abroad could mean becoming ineligible for the very visa they left to pursue.
Consular processing wait times add another layer. At some US embassies abroad, appointment backlogs stretch beyond a year. Applicants from countries where US diplomatic facilities are closed or operating at reduced capacity, such as Afghanistan, face an even starker reality: there may be no embassy to apply at.
An Already Turbulent Climate for US Immigration
The policy memo arrives in a context of escalating restrictions on legal immigration under the Trump administration. USCIS in late 2025 ordered enhanced vetting and discretionary scrutiny of applications from nationals of 19 “high-risk” countries, a list that includes Iran, Venezuela, Cuba, and Haiti, among others. PM-602-0199 layers on top of those country-specific restrictions, applying its heightened discretionary standard to all applicants regardless of nationality.
For the EB-5 market specifically, the timing compounds existing uncertainty. The administration’s proposed Gold Card visa, which Commerce Secretary Howard Lutnick has framed as a replacement for EB-5, remains legally and operationally undefined. The EB-5 program’s regional center authorization expires in September 2027, and the RIA’s grandfathering provisions protect petitions filed before September 2026. EB-5 investors now face a narrowing window in which both the program’s statutory basis and the AOS pathway they depend on are simultaneously under pressure.
USCIS did not specify when the policy takes effect, whether it applies to applications already pending, or how it interacts with the RIA’s concurrent filing provisions. Several immigration firms have indicated that litigation is likely.
