EB-5 Concurrent Filing and the May 2026 USCIS Discretion Memo

What the Memo Does Not Do

A USCIS policy memorandum cannot rewrite the statute. PM-602-0199 does not repeal any statute, it does not eliminate adjustment of status, and it does not prohibit anyone from filing Form I-485 from within the United States. Section 245 of the Immigration and Nationality Act still authorizes in-country green card applications, and the EB-5 concurrent filing rule remains in force. No memorandum can change those laws.

What the Memo Does

A higher bar of discretion

The memorandum still carries real weight, however. It instructs USCIS officers to treat adjustment of status as an extraordinary, discretionary benefit rather than a routine step, and it appears to reflect a broader policy preference for consular processing in many cases involving temporary visa holders. Officers are told to weigh, as a negative factor, conduct inconsistent with the temporary purpose of a person’s admission.

In practice, satisfying the eligibility requirements may no longer be the end of the analysis where discretionary concerns are present. Where an applicant’s record carries negative factors, the memorandum tells officers to look for genuinely strong positive factors to offset them, in its words “unusual or even outstanding equities.” For some applicants, this can mean a denial of adjustment and a redirection to apply abroad.

What is still unsettled

Two points about the memorandum remain unsettled. First, although it took effect immediately, detailed implementing guidance has not yet been published, and how heavily the policy will be applied will become clearer over the coming months. Second, how it applies to I-485 applications that were already pending when it was issued is disputed among immigration attorneys; an applicant who filed in good-faith reliance on the prior rules may have a fairness argument against being judged retroactively under a new standard. The memorandum also states that USCIS may issue further policy guidance specific to certain adjustment of status categories or groups of applicants, so EB-5-specific guidance may follow; this page will be updated if it does.

Why EB-5 Investors Are Better Positioned

The memorandum’s central concern is that, for many applicants, choosing to adjust status inside the United States is a disfavored choice when a consular option exists abroad. EB-5 investors have a direct answer to that concern, and it comes from Congress.

Congress authorized EB-5 concurrent filing by statute

In 2022, Congress did not merely permit EB-5 investors to adjust status in the United States. Through the EB-5 Reform and Integrity Act, it enacted a statute, INA § 245(n), 8 U.S.C. § 1255(n), providing that where approval of an EB-5 petition would make a visa immediately available, the investor’s adjustment application “shall be considered to be properly filed” whether submitted concurrently with, or after, the investor petition. That is the opposite of a disfavored workaround. It is a filing route the legislature deliberately created.

It is important to be precise about how far that argument carries. Section 245(n) governs whether the I-485 is properly filed. It does not guarantee that an application will be approved, and it does not remove USCIS’s authority to review admissibility, eligibility, visa availability, and discretion. It is best understood as a strong statutory answer to any suggestion that filing in-country is itself improper for an EB-5 investor, not as a guarantee of the outcome.

Dual-intent status (H-1B and L-1)

Status type also matters. The memorandum states that applying for adjustment of status is not inconsistent with simultaneously maintaining a dual-intent nonimmigrant status, principally H-1B or L-1, and many EB-5 investors hold those statuses. That advantage is strongest where the status was genuinely maintained and nothing in the applicant’s conduct cut against the terms of admission. The memorandum is also explicit that maintaining a dual-intent status alone does not earn a favorable decision; the strength of the whole application still decides the case.

A clean record: what the firm would argue

There is a further point for investors with a clean record, and it should be stated carefully. The memorandum itself says that the absence of adverse factors, on its own, does not establish the “unusual or even outstanding equities” it describes. At the same time, the case law the memorandum relies on, including Matter of Blas, frames that heightened showing as something an applicant needs in order to offset adverse factors in the record. There is therefore a reasonable argument, which the firm would expect to make, that where an EB-5 investor in lawful dual-intent status has no immigration violations, no unauthorized employment, and no other adverse history, there are no adverse factors to offset, and the discretionary analysis should turn on the ordinary weighing of positive and negative factors rather than on a separate heightened threshold. This is an argument about how the memorandum and the underlying case law should be read; it is not a position the memorandum itself adopts, and USCIS officers may apply the policy differently. A clean record remains valuable in any event, and a strong application should document it fully.

What USCIS Still Reviews

None of this guarantees an approval. Section 245(n) settles when an EB-5 investor may file, not whether the application will succeed. USCIS continues to review every adjustment application in full, including:

• Visa availability. Whether a visa is genuinely available on the filing date. This depends on the monthly Visa Bulletin, the EB-5 category, and which Visa Bulletin chart USCIS designates for adjustment filings that month. See our EB-5 Visa Processing Time page for how visa availability works by category and country.
• Admissibility. Whether anything in the applicant’s history, such as certain immigration, criminal, or health-related issues, would bar permanent residence.
• Eligibility. Whether the applicant meets every legal requirement for adjustment of status.
• Discretion. Whether the positive and negative factors, taken together, warrant a favorable exercise of discretion. The May 2026 memorandum directs officers to apply this review more rigorously.

Practical Steps for EB-5 Investors

• Confirm visa availability first. Verify, before filing, that a visa is immediately available for your EB-5 category and priority date, and which Visa Bulletin chart governs adjustment filings that month. Our EB-5 Visa Requirements page sets out the eligibility rules in detail.
• Prepare the I-485 as a legal submission. Treat the adjustment application as a documented legal filing, not a routine form package, and affirmatively present the favorable factors in your case. Our Form I-485 Guide explains the adjustment application in detail.
• Document lawful status and a clean record. Maintain and document lawful status, work authorization compliance, tax compliance, and the absence of any immigration violations.
• Be ready to cite the statute. Where appropriate, point to INA § 245(n) as the express congressional authorization for EB-5 concurrent filing.
• Get advice on your specific facts. If you entered on a visa that is not dual-intent, or filed soon after entry, the timing of your entry and filing deserves particularly careful review with counsel.

Frequently Asked Questions

This page is provided for general informational purposes only and is not legal advice. It does not create an attorney-client relationship. PM-602-0199 is a recent and developing policy; the law and USCIS guidance in this area may change, and the right course of action depends on the specific facts of your case. Please consult qualified EB-5 counsel before taking any action based on this page.

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