On May 21, 2026, U.S. Citizenship and Immigration Services issued a policy memorandum, reaffirming that adjustment of status is “a matter of discretion and administrative grace” rather than an entitlement. The memo signals a shift in how USCIS officers are expected to approach Form I-485 applications from applicants currently in nonimmigrant status, and EB-5 investors planning to adjust status from inside the United States should pay close attention.
The sections below cover what the memo actually changes, which nonimmigrant categories are most exposed, and how EB-5 investors should weigh adjustment of status against consular processing.
What the Memo Says
Who Is Affected
What This Means for EB-5 Investors
Why Qualified Legal Counsel Matters More Than Ever
What the Memo Says
The policy memorandum reminds officers that adjustment of status was never designed to replace ordinary consular visa processing. Citing decades of case law from the Board of Immigration Appeals and federal courts, USCIS frames adjustment as an “extraordinary” form of relief that allows qualifying applicants to obtain lawful permanent residence without leaving the country. Because it is extraordinary, the memo argues, it should be granted only when applicants demonstrate that they merit a favorable exercise of discretion.
The memo emphasizes that meeting eligibility requirements is not enough. Officers are directed to weigh the full record, including immigration history, conduct after admission, any violations of nonimmigrant terms, and whether the applicant could have pursued an immigrant visa through consular processing. Where adverse factors exist, applicants may need to show “unusual or even outstanding equities” to overcome them. The memo also confirms that USCIS will issue further policy guidance specific to particular adjustment categories and applicant populations.
Who Is Affected
The memo draws a clear line between nonimmigrant visa categories. Visas with nonimmigrant intent are flagged as the central concern, since Congress intended for nonimmigrant visa holders to depart once their purpose in the United States was accomplished. This group includes:
- F-1 student visas
- TN visas under USMCA
- E-1 and E-2 treaty trader and investor visas
- B-1 and B-2 visitor visas
- O-1 visas for individuals with extraordinary ability
For applicants in these categories, filing Form I-485 and remaining in the United States to pursue permanent residence now comes with a heightened burden to establish the correct intent at the time of entry into the U.S., and a change of circumstances warranting a favorable grant of discretion. The memo identifies the Adjustment Filing from a nonimmigrant status as a potential adverse factor that officers may weigh against the application, particularly when the applicant’s intent to remain permanently was apparent at the time of admission or developed during their stay.
Dual intent categories, including H-1B and L-1, are explicitly acknowledged as compatible with simultaneously pursuing adjustment of status. The memo cautions, however, that holding a dual intent visa is not by itself enough to warrant a favorable exercise of discretion. Officers are still expected to weigh the totality of the circumstances.
What This Means for EB-5 Investors
The EB-5 program has long been an attractive route for foreign nationals already living and working in the United States. Many investors who first arrived on F-1, E-2, or other temporary visas have used concurrent filing of Form I-526E and Form I-485 to transition toward permanent residence without returning home. This new guidance does not eliminate that pathway, and there is no directive instructing officers to deny these applications outright. What has changed is the framework officers are told to apply.
In practice, an EB-5 investor adjusting status from F-1 or E-2 should now expect more scrutiny on questions like when the intent to immigrate developed, whether nonimmigrant status was properly maintained, and whether consular processing was a reasonable alternative. Investors who have followed the rules carefully and can document strong equities are still well positioned. Those with gaps in status, employment irregularities, or other adverse factors may face a harder path than they would have under previous practice.
It is also worth noting what the memo does not do. It does not change statutory eligibility for adjustment of status, affect consular processing, or target EB-5 specifically. Investors with the option to pursue an immigrant visa through a U.S. consulate abroad retain that alternative, and for some applicants this may be the cleaner route.
Why Qualified Legal Counsel Matters More Than Ever
The administration has continued to add layers of complexity to EB-5 adjudication, from the FIFO processing change earlier this year to heightened scrutiny across multiple visa categories. This latest memo adds another dimension. Whether a particular investor should proceed with adjustment of status, switch to consular processing, or take other steps depends on facts that only a qualified immigration attorney can properly assess: the specific visa history, the timing of investment, family circumstances, employment record, and any prior interactions with USCIS or consular officers.
EB-5 investors currently in the United States on a nonimmigrant visa, or planning to enter on one, should consult an experienced EB-5 immigration attorney before filing Form I-485 or making any irreversible decisions.
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