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THE END OF

U.S. Citizenship and Immigration Services (USCIS) has fundamentally altered the path to a Green Card for foreign nationals currently living in the United States. Under a newly issued policy directive, the agency has declared that Adjustment of Status (Form I-485) will now be treated as an extraordinary form of relief, rather than a routine administrative step.

This sweeping shift transforms the I-485 process from a simple eligibility check into a highly discretionary evaluation. This change places many non-immigrant visa holders - particularly EB-5 investors, students, and tourists - in a precarious legal position.

The Core Policy Shift: Consular Processing is Now the Standard. The core message from USCIS is clear: if you want a Green Card, you must apply from outside the United States.

The agency is strictly enforcing long-standing immigration principles that require temporary visitors to return to their home countries and utilize U.S. Department of State consular processing to obtain permanent residency.

Statement from USCIS Spokesman Zach Kahler:  "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... When aliens apply from their home country, it reduces the need to find and remove those who decide to slip into the shadows."

 WHAT THE POLICY ACTUALLY DOES 

•    It Recenters Discretion: Proving you meet the technical eligibility requirements for a Green Card is no longer enough. Applicants must now actively persuade USCIS officers that they deserve a "favourable exercise of discretion."

•    It Retains the Law: This memo does not erase statutory mechanisms—such as the concurrent filing rules established by the EB-5 Reform and Integrity Act of 2022. Instead, it shifts how aggressively USCIS officers will scrutinise the applicant's history and intent.

•    It Identifies Adverse Factors: Officers are instructed to weigh negative factors heavily, including any conduct that contradicts the original purpose of a temporary visa.

WHO IS MOST AT RISK: The impact of this policy depends heavily on the specific non-immigrant visa category an applicant used to enter the United States.

1. B-1/B-2 Tourists and Visitors (High Risk)
Tourists and business visitors face the toughest path under the new guidance. Because B-1/B-2 visas strictly forbid immigrant intent, entering the country as a tourist and immediately filing a Green Card application (or an EB-5 petition) can be flagged as "conduct inconsistent with the purpose of admission."

If a tourist's I-485 is denied after their original tourist stay (I-94) has expired, their work and travel permits vanish instantly. They begin accruing unlawful presence immediately, placing them at risk for deportation.

2. F-1 International Students (Moderate to High Risk)
Like tourists, F-1 students do not possess "dual intent" privileges. Showing immigrant intent can jeopardise their student status. While current regulations provide some cushion against the rapid accrual of unlawful presence, pending Department of Homeland Security (DHS) proposals threaten to eliminate these protections by replacing "duration of status" with fixed, rigid expiration dates.

3. H-1B and L-1 Professionals (Safest Category)
Professionals holding H-1B or L-1 visas are highly insulated by design. These categories explicitly allow for "dual intent," meaning applicants can legally maintain their temporary work status while pursuing a permanent Green Card.

The Catch: Maintaining an H-1B visa does not guarantee approval. Footnote 20 of the USCIS memo emphasises that keeping dual-intent status is not sufficient on its own to force a favourable decision. Furthermore, those who let their work visas lapse to rely solely on an adjustment-based work permit (EAD) lose this protection entirely.

MOVING FORWARD - THE CONSULAR PATHWAY: 

If USCIS denies an Adjustment of Status application purely as a matter of discretion, it does not mean the underlying immigrant petition (such as an EB-5 petition) is revoked. The approved petition remains valid, and the applicant can still seek an immigrant visa at a U.S. Embassy or Consulate abroad.

Because consular visa processing is strictly based on eligibility and admissibility rather than administrative grace, it bypasses the discretionary hurdles introduced by this new memo. However, applicants must navigate this transition carefully to avoid triggering three- or ten-year travel bars caused by departing the U.S. with accrued unlawful presence.

SUMMARY OF IMPACT BY VISA TYPE

Bilimoria & Associate can assist you in the preparation of your I-526 Immigratiotion petition by Alien Entrepreneur by filing an applicant through EB5 Investor category.  The I-526 petitions are prepared by respective appointed Immigration Attorneys and submitted, on behalf of EB5 Investor . Bilimoria & Associate Would assist the applicant in the preparation of I-131 Travel document, I-485 - Adjustment of Status and I-765 - Employment authorisation.

We liaise with the Member of the Oregon State Bar Association and Attorney in good standing, USA (OSB) and also liaise with members of the American Immigration Lawyers Association (AILA) and members of the New York State Bar Association (NYSBA), towards preparation of a successful application for EB-5 visa. 

You can write to us to assess your eligibility at:  neville@bilimoriaassociate.com  (or) contact us +91 44 2822 7127 / 2823 9229 / 4350 8191  between Monday – Saturday, 10.30 am to 5.30 pm. You can also fix an appointment with our office to meet us in person to discuss your eligibility. 

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