Recent guidance from USCIS indicates a shift towards a more stringent discretionary framework for processing Form I-485 status applications. This includes employment-based cases, such as the EB-5 program. As it stands, there is considerable uncertainty around the breadth of this policy’s implementation, its potential to endure legal scrutiny, and the rigor with which U.S. immigration officials will apply it to individual cases. Therefore, it is crucial for EB-5 investors to understand these emerging risks before any issues arise.
The new policy memorandum redefines the adjustment of status process in the U.S. as a form of “special relief,” allowing applicants to obtain a green card domestically rather than following the traditional route of applying at a U.S. consulate abroad. This characterization is misguided and misaligned with the Immigration and Nationality Act’s terminology, which has been amended multiple times by Congress. It also conflicts with USCIS’s regulations and long-established federal court and Board of Immigration Appeals precedents.
Traditionally, having eligibility for desired benefits has been viewed as a positive aspect, leading USCIS to exercise discretion favorably unless negative factors are present. However, USCIS has acknowledged that those who submit applications contributing to economic benefits or national interest are likely to continue on their existing paths. While the EB-5 Reform and Integrity Act of 2022 permits simultaneous adjustment of status applications, a careful review of the memorandum suggests that interim benefits obtained through employment authorization documents (EADs) and advance paroles (APs) could now be seen as negative factors in discretionary evaluations.
The implications of this new policy are significant for EB-5 investors. Should USCIS deny an I-485 application, and the applicant lacks valid nonimmigrant status at that time, they may face immediate unlawful presence and the requirement to leave the U.S. promptly. In some instances, USCIS could issue a Notice to Appear (NTA), initiating removal proceedings. Furthermore, if an EB-5 application is approved after the applicant has left the U.S., they may need to reapply for an immigrant visa at a U.S. consulate, which necessitates filing Form I-824 to redirect an approved application to a national visa center, potentially causing significant delays.
Additionally, there are growing concerns for applicants who entered the U.S. on a B-1/B-2 visitor visa or other non-dual intent categories, such as F-1, J-1, O-1, TN, E, and H-1B1, right before filing an adjustment application. USCIS may closely examine whether the applicant had intended to immigrate upon entry, particularly if previous representations made to Customs and Border Protection (CBP) differ from later actions. This scrutiny may revolve around the timing of the application and the likelihood of raising issues under INA § 212(a)(6)(C)(i) regarding inadmissibility based on fraud or misrepresentation, with severe repercussions including permanent entry bans.
At present, many aspects of the policy remain ambiguous. There are substantial legal queries about the extent to which USCIS can enforce these new guidelines, and forthcoming litigation may restrict or alter these practices. EB-5 investors, who have significantly contributed to the U.S. economy through capital investment, job creation, and long-term business relationships, are encouraged to proactively gather supporting documentation to facilitate a favorable discretionary review during their application process. A well-crafted legal brief can provide essential context and establish credibility, ultimately reducing the risk of adverse conclusions based solely on incomplete information. Useful evidence may include:
Documentation of prolonged legal residence and compliance history, prior approval notifications, tax returns, evidence of business ownership or investment endeavors, job creation records, community engagement, children’s school records, real estate ownership, and statements detailing travel history and genuine intent at the time of entry.
FAQs about USCIS’ new I-485 Adjustment of Status Policy
1) I have an I-485 adjustment of status application pending with USCIS, or I am about to file one. Should I leave the United States and apply for a green card at a consulate abroad?
No, departing the United States immediately to apply at a U.S. consulate is not necessary. We advise against making any decisions without first consulting an attorney to weigh the risks and benefits of continuing the I-485 adjustment process from within the U.S.
2) I possess several positive attributes without any significant negative factors. Will my I-485 application be approved, or must I leave the U.S. to apply for a green card abroad?
While favorable factors are encouraging, it remains uncertain how USCIS will apply this new guidance in practice. We expect further instructions from USCIS on interpreting and implementing this guidance in future I-485 adjudications, so an answer is not yet clear.
3) I have minor negative factors, such as a criminal record or visa overstay. How will these affect my I-485 application?
If negative elements are present, prepare to present compelling evidence of your positive attributes and the hardships you and your family would face if you were forced to seek a green card abroad. A consultation with an attorney is advisable to discuss these concerns in detail.
4) Are there risks associated with leaving the U.S. to apply for a green card at a consulate abroad? Could my application be denied?
Yes, significant risks exist under certain conditions, such as unlawful presence. Departing under such circumstances could result in a multi-year ban or challenges in re-entering the U.S. Additionally, the process at consulates can be prolonged, potentially complicating your green card application.
For further inquiries, please reach out to visalaw@wolfsdorf.com.
