Search results for: Maintaining Eligibility for Permanent Residence for EB-5 Investors

This is the fifth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on accepting certain public benefits that may make an investor and/or his or her dependents a “public charge.”

The Trump Administration has stated that USCIS will start deportation proceedings for any conditional permanent resident or lawful permanent resident who has abused any program related to receipt of public benefits. Additionally, conditional permanent residents and lawful permanent residents alike cannot be a “public charge.” This means an individual who is likely to become primarily dependent on the government for subsistence, as demonstrated by either the receipt of public cash assistance for income maintenance or institutionalization for long-term care at the government’s expense.

USCIS can make a “public charge” finding at the time of the immigrant visa interview for the conditional green card and at the I-829 Petition interview. A finding that the investor or a family member is a “public charge” can lead to denial of the immigrant visa or the I-829 Petition, and commencement of deportation proceedings following the I-829 Petition denial.

Acceptance of the following types of assistance may lead to the determination that the individual is likely to become a public charge:

  • Supplemental Security Income (SSI) under Title XVI of Social Security Act;
  • Temporary Assistance for Needy Families (TANF) cash assistance (part A of Title IV of the Social Security Act–the successor to the AFDC program);
  • State and local cash assistance programs that provide benefits for income maintenance (often called “General Assistance” programs); and
  • Programs (including Medicaid) supporting individuals who are institutionalized for long-term care (e.g., in a nursing home or mental health institution).

Under current USCIS guidance, non-cash benefits (other than institutionalization for long-term care) are generally not taken into account for purposes of a public charge determination. Non-cash or special-purpose cash benefits are generally supplemental in nature and do not make a person primarily dependent on the government for subsistence. Therefore, past, current, or future receipt of these benefits do not impact a public charge determination at present. Non-cash or special purpose cash benefits that are not considered for public charge purposes include:

  • Medicaid and other health insurance and health services (including public assistance for immunizations and for testing and treatment of symptoms of communicable diseases; use of health clinics, short-term rehabilitation services, and emergency medical services) other than support for long-term institutional care;
  • Children’s Health Insurance Program (CHIP);
  • Nutrition programs, including Food Stamps, the Special Supplemental Nutrition Program for Women, Infants and Children (WIC), the National School Lunch and School Breakfast Program, and other supplementary and emergency food assistance programs;
  • Housing benefits;
  • Child care services;
  • Energy assistance, such as the Low Income Home Energy Assistance Program (LIHEAP);
  • Emergency disaster relief;
  • Foster care and adoption assistance;
  • Educational assistance (such as attending public school), including benefits under the Head Start Act and aid for elementary, secondary, or higher education;
  • Job training programs; and
  • In-kind, community-based programs, services, or assistance (such as soup kitchens, crisis counseling and intervention, and short-term shelter).

The Trump Administration is attempting to expand the list of government benefits that could lead to a public charge finding. Specifically, the administration may expand list of “public charge” benefits to include Medicaid, subsidized Obamacare, food stamps, tax credits, or other non-cash government benefits. If an EB-5 investor and/or his or her dependents receive any of these benefits, and then the administration adds those benefits to the list of “public charge” benefits, USCIS may seek to deny the I-829 Petition. As such, EB-5 investors and their family members should try to avoid receiving these benefits following the grant of CPR status. Insurance paid for in the marketplace under the Affordable Healthcare Act should not result in a public charge finding.

This is the fourth post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on criminal issues and tax issues.

President Trump’s Executive Order, along with a Department of Homeland Security (DHS) implementation memorandum, prioritizes removable aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved; and
  • Have committed acts that constitute a chargeable criminal offense.

Importantly, a criminal conviction is not required for USCIS to start the deportation process for an EB-5 investor or any of his or her dependent family members. Any CPR who has been arrested anywhere in the world for any infraction should reach out to his or her immigration attorney to determine the best course of action.

EB-5 investors and their dependents should disclose to their attorney all arrests and encounters with law enforcement. Even if previous visa applications have been approved in the past, or if an arrest or conviction occurred a very long time ago or for a very minor infraction, such arrest can lead to the initiation of deportation proceedings in the U.S. Failure to disclose arrests or convictions can lead to an I-829 Petition denial and the start of deportation proceedings.

Finally, conditional permanent residents and permanent residents alike are subject to the U.S. tax rules, and may be considered a “resident” for tax purposes if he or she is maintaining her permanent residence in the U.S. as outlined in our previous blog, including being physically present in the U.S. for more than six months a year. Failure to file tax returns as a “resident” of the U.S. when an investor and/or his or her dependents are required to do so could result in the denial of an I-829 Petition. The EB-5 investor can contact his or her accountant for more information.

As we previously reported, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens”[1] on June 28, 2018.  This Policy Memorandum was issued in response to President Trump’s Executive Order (EO), “Enhancing Public Safety in the Interior of the United States.” One of the priorities listed in the EO is to remove aliens from the United States where necessary, including those aliens who are deportable or inadmissible, with no exceptions. USCIS has the authority to file a Notice to Appear to start deportation proceeds against EB-5 investors who have already achieved conditional permanent residence in several instances:

  1. There has been a termination of conditional permanent resident status;
  2. There is fraud, misrepresentation, and abuse of public benefit programs; and
  3. There is a conviction for a crime, or even an arrest for a criminal offense where the case has not yet been resolved.

This is a third post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence and I-829 Petition approval. This blog focuses on termination of permanent resident status.

An EB-5 investor who has been granted the two-year conditional green card should take steps to protect his or her conditional permanent resident (CPR) status. Spending significant amounts of time outside the U.S. is a serious problem for any permanent resident, including EB-5 investors.  Absences of more than six (6) months from the U.S. can lead to extensive questioning at the airport or point of entry to the U.S. by U.S. Customs and Border Protection (CBP). The CBP officer can determine at the airport that the investor abandoned his or her CPR status. Absences of more than one (1) year may likely result in a finding at the point of entry that the CPR abandoned his or her status.

Additionally, a pattern of trips where the CPR spends significant amounts of time outside the U.S. and only takes short trips into the U.S. could lead to a finding of abandonment. Finally, each member of the EB-5 investor’s family is responsible for protecting his or her own CPR status; each family member must individually meet the residence requirements to avoid abandonment of the green card.

EB-5 investors and their dependent family members should consider the following:

  • Spend as much time as possible physically present in the U.S. Generally, permanent residents of the U.S. should be spending at least six (6) months a year in the U.S. This time can be cumulative; it does not need to be in just one entry to the U.S.
  • If it is not possible to spend six (6) months a year in the U.S., consider obtaining a re-entry permit from USCIS. A re-entry permit is advanced permission to spend longer periods of time outside the U.S. Contact your immigration attorney to understand more about this process.
  • Maintain a residence in the U.S. This can be through the purchase of a home or renting an apartment. Utilities in the investor’s name can also help, as does car ownership.
  • Maintain bank accounts, credit cards, and investments in the U.S. to show financial ties.
  • Maintain insurance in the U.S., including home, health, and life insurance.

CPR investors and their dependent family members should consider carrying with them evidence of their ties to the U.S. after an extended absence abroad in case he or she is questioned at the airport regarding their absence from the U.S.

Additionally, the Trump Administration has stated that it intends to interview all applicants for green cards, which would include EB-5 investors and their family members applying for permanent green cards on Form I-829. During any I-829 Petition interview conducted by USCIS, the officer can ask the EB-5 investor and his or her dependents about their residency in the U.S. and their travel history during the two years of conditional residency. Extended absences from the U.S. and lack of ties to the U.S. could result in a denial of Form I-829.

In order for dependent family members to remain protected, EB-5 investors must maintain their CPR status. If the EB-5 investor is found to have abandoned his or her residency in the U.S., the dependent family members have no basis to file Form I-829 without the investor, even if the dependents are living full-time in the U.S.

[1] As it is issued in accompaniment to the Presidential Executive Order, this Policy Memorandum is assumed to go into effect immediately upon publication.

EB-5 investors should maintain their eligibility for conditional permanent resident status, especially during any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current.

This is the second post in a series that discusses how EB-5 investors and their dependents can maintain eligibility for permanent residence. This post focuses on criminal issues and material misrepresentations on visa applications.

Criminal Issues

President Trump’s Executive Order, along with a Department of Homeland Security (DHS) implementation memorandum, prioritizes removable aliens who:

  • Have been convicted of any criminal offense;
  • Have been charged with any criminal offense that has not been resolved; and
  • Have committed acts that constitute a chargeable criminal offense.

Importantly, a criminal conviction is not required for USCIS to start the deportation process for an EB-5 investor or any of his or her dependent family members. Additionally, any arrest or conviction that occurs during any period of visa backlog, during or after I-526 Petition approval, while the investor and dependents are waiting for the immigrant visa interview, can impact the issuance of the immigrant visa by the U.S. Consulate or the approval of Form I-485 by USCIS. Any investor or their dependent who has been arrested anywhere in the world for any infraction should reach out to his or her immigration attorney to determine the best course of action.

EB-5 investors and their dependents should disclose to their attorney all arrests and encounters with law enforcement. Even if previous visa applications have been approved in the past, or if an arrest or conviction occurred a very long time ago or for a very minor infraction, such arrest can lead to the initiation of deportation proceedings in the U.S. Failure to disclose arrests or convictions can lead to an immigrant visa denial, a Form I-485 denial, or a Form I-829 Petition denial, and the start of deportation proceedings.

Misrepresentations on Visa Applications

A material misrepresentation or fraud on a visa application is a bar to entry to the U.S. on a nonimmigrant visa or a green card. It is very difficult to overcome a finding of material misrepresentation and only very limited waivers are available.

Any visa applications filed by the EB-5 investor or the dependent family members must be filed accurately and with truthful information, including nonimmigrant visa applications. An EB-5 investor with a pending or approved I-526 Petition should consider the following:

  1. Disclose the pending or approved Form I-526 on any DS-160 Application for a nonimmigrant visa, including visitor visas;
  2. Disclose all arrests and convictions on a visa application, regardless of how much time has passed since the commission of the crime or however insignificant the infraction, and even if the conviction was later removed from his or her record; and
  3. Answer employment, academic, and residency history questions consistently with the Form I-526 Petition filed on his or her behalf.

Importantly, obtaining a B visitor visa to give birth to a child in the U.S. can be used as a basis to deny the green card at the immigrant visa interview by the U.S. Consulate. Also, enrolling children in school in the U.S. on a B visa can result in a finding of permanent ineligibility on the part of the parent.

As we previously reported, U.S. Citizenship and Immigration Services (USCIS) issued a Policy Memorandum entitled “Updated Guidance for the Referral of Cases and Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens” on June 28, 2018. This Policy Memorandum was issued in response to President Trump’s Executive Order (EO), “Enhancing Public Safety in the Interior of the United States.” One of the priorities listed in the EO is to remove aliens from the United States where necessary, including those aliens who are deportable or inadmissible, with no exceptions. USCIS has the authority to file a Notice to Appear to start deportation proceeds against EB-5 investors in several instances:

  1. There has been an immigration violation and the alien is out of status;
  2. There is fraud, misrepresentation, and abuse of public benefit programs; and
  3. There is a conviction for a crime, or even an arrest for a criminal offense where the case has not yet been resolved.

It is now more important than ever for EB-5 investors to maintain their eligibility for conditional permanent resident status, especially during any period of visa backlog occurring in between the time of I-526 Petition approval and when the investor’s priority date becomes current.

This is the first in a series of blog entries discussing how EB-5 investors and their dependents can maintain eligibility for permanent residence. This blog post focuses on maintaining nonimmigrant status.

EB-5 investors and/or their dependent family members who may be in the U.S. with nonimmigrant status must be careful to maintain that nonimmigrant status to avoid being placed in removal proceedings by USCIS.

Many investors and/or their dependents are foreign students in the U.S. Foreign students in the U.S., including dependents of investors, should understand that they:

  • Must continue studies pursuant to the F-1 or J-1 or M-1 forms issued by the school;
  • Cannot work without permission. Students must work pursuant to CPT or OPT or part-time on campus employment. Students must keep in mind that even unpaid internships or volunteer work can be considered “employment,” thus they must check with their school and immigration attorney to see if the activity is permitted under the student status; and
  • Should check with their lawyer and international students office before: working, changing programs, reducing course load or stopping coursework.

Importantly, the Trump Administration recently changed certain immigration rules as they apply to foreign students. An F, J, or M nonimmigrant begins accruing “unlawful presence,” due to a failure to maintain his or her status on or after Aug. 9, 2018, on the earliest of any of the following:

  • The day after the F, J, or M nonimmigrant no longer pursues the course of study or the authorized activity, or the day after he or she engages in an unauthorized activity (such as unauthorized employment);
  • The day after completing the course of study or program (including any authorized practical training plus any authorized grace period);
  • The day after the Form I-94 expires, if the F, J, or M nonimmigrant was admitted for a date certain;
  • The day after an immigration judge orders the alien excluded, deported, or removed (whether or not the decision is appealed).

Any EB-5 investor or dependent who accrues more than 180 days of unlawful presence is thereafter barred from entering the U.S. in any category, including on a green card, for three (3) years. Any EB-5 investor or dependent who accrues more than 365 days of unlawful presences is thereafter barred from entering the U.S. in any category, including on a green card, for ten (10) years. Accruing unlawful presence following the violation of student status can bar an EB-5 investor and/or dependent from obtaining the EB-5 green card. It is critical for foreign students to check with their international student office and/or their immigration attorney prior to changing their coursework, reducing coursework, taking time away from school, or accepting any employment, including volunteer positions and unpaid internships.

For EB-5 investors or their dependents in another nonimmigrant status in the U.S., such as H-1B or H-4, L-1 or L-2, and E-1 or E-2, changes to employment can affect underlying nonimmigrant status. Changing employers, location of employment, wage rate and/or position can have an effect on whether the investor is maintaining proper status in the U.S. It is critical for the investor to check with his or her immigration attorney prior to making any changes to employment to ensure he or she is maintaining lawful status in the U.S. Failure to maintain lawful status in the U.S. can lead to the commencement of deportation proceedings and ineligibility for the EB-5 green card.

The Department of Homeland Security’s (DHS) final rule eliminating “duration of status” (D/S) for F-1 students and J-1 exchange visitors takes effect on Sept. 15, 2026. The rule will change how certain categories of nonimmigrants maintain lawful status in the United States.

Historically, F-1 and J-1 nonimmigrants admitted for D/S have been permitted to remain in the United States for the duration of their academic program or exchange activity, plus any applicable grace period, without a fixed expiration date on their Form I-94. Under the new rule, these nonimmigrants will instead be admitted for a fixed period of authorized stay. Those who require additional time to complete their program, transfer schools, begin a new program, or otherwise continue in F-1 or J-1 status will generally need to file Form I-539, Application to Extend/Change Nonimmigrant Status.

DHS has now issued transition guidance explaining how the new rule will apply to individuals who are already in the United States when it takes effect. While the guidance provides relief for some current students and exchange visitors, it also creates new planning considerations for individuals contemplating an EB-5 investment and adjustment of status.

Transition Relief for Current F-1 and J-1 Nonimmigrants

F-1 students and J-1 exchange visitors who are physically present in the United States and maintaining valid status on Sept. 15, 2026, generally may remain in the United States until the earlier of their current program end date or Sept. 15, 2030, four years after the rule’s effective date. F-1 students will continue to receive a 60-day grace period following completion of their program, while J-1 exchange visitors will continue to receive a 30-day grace period. Individuals covered by these transition provisions do not need to file Form I-539 simply to benefit from the transition period.

The transition protections, however, may be affected by international travel. An F-1 or J-1 nonimmigrant who departs the United States after Sept. 15, 2026, and is subsequently readmitted will enter under the new fixed-period admission framework. In addition, F-1 students generally will lose the benefit of the traditional 60-day grace period and instead receive a 30-day grace period following expiration of their authorized stay. Students contemplating an EB-5 should note that travel may affect both available transition benefits and future extension requirements.

Why This Matters for Prospective EB-5 Investors

The EB-5 Reform and Integrity Act permits many eligible F-1 students to file Form I-526E and Form I-485 concurrently while maintaining valid nonimmigrant status. Once a properly filed Form I-485 is pending, applicants generally enter a period of authorized stay and may apply for employment authorization and advance parole, allowing them to remain in the United States while USCIS adjudicates their adjustment application.

The importance of preserving eligibility to adjust status has become even more notable following USCIS’s May 2026 policy memorandum addressing I-485 adjustment of status adjudications. As previously discussed in a GT Alert, the memorandum emphasizes that adjustment of status is a discretionary benefit and reinforces that applicants must continue to satisfy all applicable eligibility requirements throughout the adjudication process. The memorandum also highlights that individuals who are not eligible to adjust status in the United States may need to pursue immigrant visa processing through a U.S. consulate abroad. For prospective EB-5 investors, preserving eligibility to file and maintain an adjustment application in the United States has therefore become an increasingly important strategic consideration.

Against this backdrop, the elimination of D/S introduces an additional planning challenge for F-1 and J-1 students pursuing EB-5. Prospective investors may need to account for two separate but interconnected timelines: the timing considerations associated with adjustment of status filings and the requirement to maintain valid nonimmigrant status until an adjustment application is filed.

The first timeline relates to immigrant intent. Some immigration practitioners consider the Department of State’s 90-day guidance when advising clients who entered the United States in a nonimmigrant classification and later decide to pursue adjustment of status. Although the guidance does not establish a statutory waiting period and is not binding on USCIS, it is frequently considered as part of an overall strategy to minimize questions regarding whether an applicant misrepresented their intent at the time of their most recent admission.

The second timeline concerns maintenance of lawful nonimmigrant status. Under the prior duration of status framework, F-1 and J-1 students generally did not need to monitor a fixed I-94 expiration date while determining the appropriate timing for filing an adjustment application. Beginning Sept. 15, 2026, however, F-1 and J-1 nonimmigrants will instead have a fixed period of authorized stay. As a result, students who strategically delay filing Form I-485 after admission may also need to confirm that their underlying F-1 or J-1 status remains valid throughout that period. Depending on the circumstances, maintaining eligibility to adjust status may require timely filing of Form I-539 to extend status or pursuing another available immigration strategy.

The expiration of nonimmigrant status may have consequences beyond the loss of the ability to remain in F-1 or J-1 status. Depending on the facts of the case, failure to maintain lawful status before filing Form I-485 may adversely affect eligibility to adjust status in the United States and might require the individual to pursue immigrant visa processing abroad instead. Accordingly, prospective EB-5 investors may wish to assess how the timing of an EB-5 investment, Form I-526E filing, adjustment filing, OPT or STEM OPT eligibility, travel plans, and maintenance of F-1 or J-1 fit within a coordinated immigration strategy.

Transition Relief for OPT and STEM OPT Applicants

DHS has also provided temporary relief for certain F-1 students applying for post-completion OPT and STEM OPT. Students who are present in the United States on Sept. 15, 2026; maintain valid F-1 status; and timely file Form I-765 for post-completion OPT or STEM OPT before March 18, 2027, generally will not be required to file Form I-539 solely because they are seeking OPT or STEM OPT benefits.

International travel after the rule’s effective date may change that analysis. Students who depart and reenter the United States after Sept. 15, 2026, may lose the benefit of this transition relief and might be required to file both Form I-539 and Form I-765. Students who are eligible to apply for OPT or STEM OPT before Sept. 15, 2026, or during the transition period before March 18, 2027, should consider filing as early as they are eligible to maximize the available transition benefits.

Planning Considerations for EB-5 Investors

The elimination of D/S represents a notable change for F-1 and J-1 students considering permanent residence through EB-5. While the transition rules provide relief for individuals already present in the United States, the new framework places a greater emphasis on proactive planning and monitoring of status expiration dates. Prospective EB-5 investors may wish to begin evaluating their immigration strategy prior to the expiration of their current period of authorized stay. Investors should consider whether they are eligible for concurrent filing of Form I-526E and Form I-485, whether additional time in F-1 status may be required, whether OPT or STEM OPT provides a bridge to maintain status, and whether international travel might affect their transition benefits or adjustment strategy.

Looking Ahead

For F-1 and J-1 students pursuing EB-5, the interaction between fixed periods of admission, adjustment filing strategy, immigrant intent considerations, OPT eligibility, and travel planning may require coordinated analysis. Careful planning before graduation, before international travel, and before initiating the EB-5 process may help preserve adjustment of status eligibility and support use of concurrent filing under the EB-5 Reform and Integrity Act.

The EB-5 Immigrant Investor Program remains a powerful pathway to U.S. permanent residency while supporting economic growth and job creation. 2026 is a pivotal year: grandfathering protections under the Reform and Integrity Act (RIA) remain available, fee adjustments are pending, and USCIS adjudication trends continue to evolve. Investors who act strategically—by filing early, documenting comprehensively, and monitoring compliance—may be best positioned for success.

I-526 Filing (Initial Petition & Investment)

1. Leverage grandfathering before program changes
Investors may wish to file their I-526 forms before Sep. 30, 2026, to lock in current investment thresholds and TEA benefits under the RIA before any new regulations or fee increases take effect.

2. Act before potential price hikes
Following a late 2025 court-ordered fee reduction, filing now allows investors to take advantage of lower EB-5 filing fees.

3. File early to avoid retrogression delays
Visa backlogs in set-aside categories (TEA, rural, and infrastructure) remain a concern, particularly for applicants from China and India. Early filing may secure investors’ priority dates and position them ahead of future cut-off dates.

4. Submit a well-documented petition
Investors may wish to work with counsel to organize timelines, source-of-funds evidence, business registrations, and tax documentation. Clear documentation may reduce the likelihood of receiving Requests for Evidence (RFEs).

5. Provide comprehensive tax filings
Include seven years of U.S. and foreign tax returns—or official proof of no tax obligations—to meet regulatory requirements.

6. Include complete business registration records
Corporate filings, licenses, shareholder agreements, and proof of good standing for all entities generating EB-5 funds are essential.

7. Reconsider older source-of-funds documentation
Funds originating many years ago are harder to verify and may contain gaps. Given increased USCIS scrutiny, consider providing more recent source-of-funds evidence.

8. Exercise caution with loans
Loans from the New Commercial Enterprise or any entity associated with the Regional Center may trigger USCIS scrutiny. Investors may wish to discuss any such loans with counsel in advance.

9. Avoid installment funding
USCIS currently disfavors phased contributions. Full upfront funding might reduce the likelihood of RFEs or denials, particularly when seeking grandfathering protection.

10. Document all capital transfers thoroughly
Investors should consider maintaining wire confirmations, bank statements, and reconciliations in order to ensure traceable, auditable transfers.

11. Address Communist Party membership proactively
Discuss any membership in the past five years with counsel and consider selecting the optimal primary applicant to avoid eligibility issues.

12. Perform rigorous due diligence on Regional Centers and projects
Verify USCIS approval, financial stability, construction timelines, and job creation projections. Investors may wish to work with a U.S.-licensed broker/dealer or business advisor.

Adjustment of Status (AOS) / Consular Processing

13. Consider concurrent filing strategically
Concurrent I-526 and AOS filing may provide work authorization and travel flexibility for applicants in the United States on valid nonimmigrant status. Confirm eligibility and timing with counsel.

14. Maintain underlying visa status
Fallback status prevents unlawful presence if an applicant’s EB-5 petition is denied and may allow alternative green card options or appeals to be filed.

15. Track visa bulletin movement and country-specific limits
Retrogression may occur, particularly for China and India. Monitor the visa bulletin monthly to ensure timely AOS or consular filing.

16. Keep documentation organized for consular interviews
Investors should have their I-526 approval, tax filings, investment records, and corporate documentation ready for review.

17. Expect potential delays due to security checks
Background checks and name matching may slow processing, so investors may wish to build extra time into their planning.

18. Disclose status violations, unauthorized work, or criminal issues proactively
Applicants may wish to discuss any potential issues with counsel early to prevent denials or complications.

19. Apply for a Reentry Permit for extended travel
U.S. permanent residents must maintain at least 180 days of residence annually. For planned absences longer than 180 days, a Reentry Permit allows up to two years abroad without risking green card status.

20. Renew EAD and AP documents proactively
For AOS applicants, investors may wish to file extensions at the 180-day mark to avoid work or travel interruptions, as automatic extensions have been discontinued.

I-829 / Removal of Conditions

21. Prepare early for I-829 filing
Maintain communication with the Regional Center to track project completion, job creation, and capital investment from I-526 through I-829. Alert counsel to any delays or issues promptly.

22. Align I-829 filings with original investment documentation
Cross-check I-829 submissions against I-526 to avoid inconsistencies that might trigger RFEs.

23. Consider mandamus for excessive I-829 delays
Mandamus litigation might be an effective tool to compel USCIS action when processing times exceed norms.

24. Plan travel around the I-829 receipt notice
Filing an I-829 extends conditional permanent resident status and provides up to 48 months of work and travel authorization. Investors may wish to avoid international travel until the receipt notice is issued, as it is required for reentry.

Naturalization Planning

25. Track residency requirements for U.S. citizenship
EB-5 investors may apply for naturalization five years after receiving the conditional green card. Maintain detailed records of physical presence and residence after conditional green card approval.

26. Prepare early for the naturalization interview and civics/English test
USCIS has increased the number of questions and expectations for passing. Begin study and preparation well in advance of eligibility.

2026 might be a strategic year for EB-5 investors. With grandfathering protections still available, potential fee increases on the horizon, and heightened scrutiny on compliance, proactive planning is essential. Investors who file early, maintain comprehensive and organized records, monitor Regional Center and project compliance, and address potential issues with counsel in advance may be best positioned for success. Approaching each stage of the EB-5 lifecycle—from I-526 filing, through AOS or consular processing, I-829 removal of conditions, and eventual naturalization—with diligence and foresight may help investors navigate evolving regulations and optimize their path to U.S. residency and citizenship.

In recent months, U.S. Citizenship and Immigration Services (USCIS) has reportedly issued denials of EB-5 immigrant investor petitions (Form I-526E) where investors filed after making only an initial installment toward their qualifying EB-5 investment, but later missed the deadline for subsequent installments into the New Commercial Enterprise (NCE). These denials highlight a fundamental legal principle governing all EB-5 filings: an EB-5 petition must be “approvable when filed.”

The Legal Standard: ‘Approvable When Filed’

Under the Immigration and Nationality Act (INA) and established precedent, an EB-5 petition can only be approved if, at the time of filing, the investor has either:

  • Already invested the full amount of qualifying capital into the NCE; or
  • Is actively in the process of investing, meaning that the capital is irrevocably committed and available for immediate use in the job-creating enterprise.

This principle is outlined further in the USCIS Policy Manual, Volume 6, Part G, Chapter 2(A), which provides that an EB-5 petition must be supported by evidence showing that the investor has “invested or is actively in the process of investing the required amount of capital.”

Furthermore, Volume 6, Part G, Chapter 2(B) clarifies that funds merely in the investor’s possession or subject to future contingencies do not satisfy the investment requirement. This standard was reaffirmed in Matter of Izummi, 22 I&N Dec. 169 (Assoc. Comm’r 1998), where USCIS held that an investor must have placed the required amount of capital “at risk for the purpose of generating a return” at the time the petition is filed. A petition cannot be approved based on “future events” or “future investment commitments.”

Installment-Based Investments: Compliance Risk if Delayed

Some NCE’s allow investors to contribute their capital in installments under the terms of the subscription or operating agreement. This might be done to accommodate an investor who may need to liquidate an asset to fund their capital, or who needs additional time to transfer funds to the NCE’s account in the United States. While installment structures may provide flexibility, they also introduce risk if the investor delays second or subsequent installments. Where the full qualifying investment amount is not yet funded or irrevocably committed at the time of filing, or where the investor later misses an installment deadline the NCE sets, USCIS may determine that the petition was not approvable when filed, resulting in denial.

Practical Considerations for EB-5 Investors

To help ensure EB-5 petitions remain compliant and approvable, investors should consider the following steps:

  1. Timely Fund All Installments – Adhere strictly to the NCE’s investment schedule and ensure the full EB-5 investment amount is transferred within the agreed timeframe.
  2. Document the Source of Funds for Each Installment – Prepare and maintain comprehensive documentation tracing the lawful source and path of funds for every installment, including wire transfers, sale proceeds, or personal savings.
  3. Submit Updated Evidence to USCIS – Once all installments are completed, submit proof proactively via an interfiling (supplemental filing) or in response to a Request for Evidence. This should include evidence of transfer of capital and the related source of funds documentation.
  4. Coordinate with Counsel and the NCE – Maintain consistent communication with both your immigration attorney and the NCE to ensure that investment deadlines, fund transfers, and documentation align with USCIS approvability standards.

Conclusion

The EB-5 program remains a vital path to permanent residence for investors worldwide, but it operates under a strict legal standard: a petition must be approvable when filed. Partial or contingent investments—even if later completed—cannot cure a deficient initial filing. Ensuring timely funding of all installments and maintaining comprehensive source-of-funds documentation may protect EB-5 investors’ eligibility and strengthen their cases before USCIS. For investors navigating installment-based investments or responding to USCIS inquiries, early action and proactive compliance may be key to success.

On July 16, 2024, U.S. Citizenship and Immigration Services (USCIS) issued new guidance for the EB-5 Regional Center Program, detailing sanctions for noncompliance, adverse actions on EB-5 petitions, and special rules for good faith investors to maintain eligibility if their regional center or project is terminated or debarred.

On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act (RIA) into law, substantially reforming the EB-5 program. The RIA also added significant new integrity provisions, including protection for good faith investors. Now, more than two years after its passage, USCIS has updated its policy manual to include guidance addressing new provisions the RIA added to the Immigration and Nationality Act (INA), clarifying the consequences of noncompliance for regional centers, new commercial enterprises (NCEs), job creating entities (JCEs), and EB-5 investors. The new provisions update Part G, Investors, in Volume 6 of the policy manual to add provisions relating to “good faith investors” and add new authority for USCIS to sanction regional centers, new commercial enterprises, and job-creating entities at various levels for noncompliance with statutory requirements.

In particular, the new guidance clarifies the impact of USCIS terminating, debarring, or suspending noncompliant regional centers, NCEs, and JCEs, and it explains how good faith investors, including those who filed petitions prior to the RIA, may remain eligible for approval of the I-526 or I-829 petition in these scenarios. The guidance also sets forth factors and processes USCIS uses to assess sanctions and explains what constitutes fraud and material misrepresentation, deceit, criminal misuse, and threats to the national interest. The guidance further clarifies that USCIS does not sanction individuals or entities for pre-RIA actions but may still consider violations that occurred pre-RIA in determining proper sanctions for post-RIA violations.

In its Policy Manual Volume 6, Part G, Chapter 3, Section E, titled “Good Faith Investors Following Program Noncompliance by a Regional Center, New Commercial Enterprise, or Job-Creating Entity,” USCIS clarifies the actions USCIS will take if an EB-5 entity is no longer allowed to participate in the EB-5 program, such as after a regional center is terminated or an NCE or JCE is debarred. The guidance clarifies that USCIS debars individuals or entities based on noncompliance with or prohibited conduct under the RIA and does not debar individuals or entities for merely failing to establish investor eligibility for visa classification or removal of conditions, such as not creating sufficient employment, or upon receipt of requests for debarment. This means that investors cannot request a debarment to trigger the “good faith” investor protections simply where job creation is not met or where the project has failed under normal business scenarios. 

Pre-RIA Investors

Consistent with its prior guidance, USCIS confirms that if a regional center is terminated, investors who filed I-526 petitions before the RIA’s March 2022 enactment can have an I-526 petition or I-829 petition approved even if the regional center’s designation is terminated, assuming the investor otherwise meets the eligibility requirements, including sustaining the at-risk investment and creating at least 10 jobs. USCIS again confirms that direct and indirect job creation can be used to meet the requirements, even when the regional center is terminated. The policy manual explains that USCIS officers will have the discretion to make a good faith determination on a case-by-case basis to continue to approve petitions.

Where a pre-RIA investor has invested into an NCE and/or a JCE that is debarred from the EB-5 program, USCIS clarifies that the investor may seek to retain eligibility by making an investment in another new commercial enterprise. In the policy manual update, USCIS states that if a pre-RIA investor chooses to make a qualifying investment in another NCE following regional center termination, the investment amount required is the amount required by statute at the time the investor initially filed the Form I-526. As of the date of this blog, it is not clear if any “good faith” pre-RIA investors have successfully filed a new I-526 petition on this basis, or made a new $500,000 investment into a new NCE to continue to qualify for permanent residence after a regional center is terminated or after an NCE or JCE debarment, even though the required investment amount has increased under the RIA. Further engagement and clarification are required by USCIS on this point.

RIA Investors

The policy manual update confirms that when USCIS terminates a regional center that is sponsoring RIA investors who filed Form I-526E after March 2022, the investor’s NCE may associate with a new regional center that is maintaining its designation in order to continue to qualify for permanent residence. That new regional center need not cover the geographic area of the EB-5 project. EB-5 stakeholders have been seeking this change for years, believing that a change of a regional center should not be considered a “material change” to the investor’s petition. 

If an NCE or JCE is debarred for an RIA investor, the investor may retain eligibility if they associate with an NCE in good standing and, pursuant to the RIA, invest additional capital “solely to the extent necessary to satisfy remaining job creation requirements.” Practically, it may be difficult for new EB-5 projects to take additional capital from these “good faith” investors where new NCEs are seeking to subscribe investors at the new investment amounts of $1,050,000 or $800,000 but where the good faith investor seeks to invest some lesser amount only to continue to qualify for the green card. Projects should consider if they wish to create different classes of investments for varying investment amounts to accommodate these types of investors.

Additionally, USCIS states that the investor must generally file an amendment to their petition or otherwise notify USCIS that they continue to meet applicable eligibility requirements notwithstanding termination or debarment, as applicable, no later than 180 days after notification of termination or debarment. Filing an amendment to an I-526E would be costly to an investor following the April 2024 filing fee increases, but USCIS may accept additional evidence in response to a debarment notification that would not require the investor to file an amendment or pay the fee. Until USCIS promulgates a new Form I-526E, the exact procedures to be followed in this scenario remain unclear.

Terminations, Suspensions, and Sanctions

USCIS also updated Volume 6, Part G, Chapter 4, Section H, “Terminations, Suspensions, and Other Sanctions,” which specifies violations permitting various sanctions for bad faith actions by regional centers, ranging from fines to suspension or termination in more serious cases. This update exemplifies USCIS’s continued efforts to crack down on regional centers engaging in activities that may undermine the integrity of the EB-5 program. USCIS may sanction regional centers not only for bad faith actions but also for possessing knowledge of bad faith or fraudulent actions. Given this threshold, the sanctions set forth in the policy manual encourage regional centers to conduct thorough due diligence and enforce close oversight of project operations to minimize the likelihood and severity of penalty for violations.

The policy manual further provides examples of sanctionable violations as an added warning and clarification to EB-5 participants. The policy update emphasizes that regional centers have a responsibility to take reasonable action to avoid violation of law, even if a regional center, commercial enterprise, or JCE is new. Inexperience in the EB-5 domain does not excuse actions that violate the law, nor does it excuse partnering with entities whose activities could be considered bad faith. This further confirms USCIS’s emphasis on the need for EB-5 program participants to perform necessary due diligence and maintenance activities to ensure compliance at all times.

The policy manual reiterates USCIS authority to levy sanctions for noncompliance by various EB-5 program participants, including measures like suspension, debarment, and termination. The new chapter provides a thorough breakdown of USCIS’s general process when it determines that a violation has occurred warranting suspension, debarment, or termination. This not only allows EB-5 participants to hold USCIS accountable to the process it has laid out in the future but also provides EB-5 participants with improved insight into next steps once a notice of intent to sanction is issued.

The policy manual is instructive of the types of actions that may be sanctioned as involving fraud, deceit, material misrepresentation, or criminal misuse, providing specific examples of actions falling under these categories. These examples intend to clearly outline actions that are sanctionable to discourage bad faith actions on the part of EB-5 participants as well as to educate individuals or entities who may be unfamiliar with the EB-5 program. USCIS’s policy update emphasizes the seriousness of intentional bad acts and warns of the ramifications for such actions. Regional centers, commercial enterprises, job creating entities, and investors should oversee their operations carefully to ensure compliance with USCIS’s updated policies and be mindful of who they are partnering with throughout the EB-5 process to avoid penalty.

On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, outlining a change to the adjustment of status (AOS) process under Form I-485. The Policy Memorandum (PM) states that applicants for permanent residence should generally process for immigrant visas at U.S. embassies and consulates abroad following immigrant petition approval, except in limited circumstances. The PM reframes AOS as an “extraordinary discretionary benefit.”

AOS is the procedure for applying for permanent residence, commonly referred to as a “green card,” while physically in the United States. It is used by applicants who are in the U.S. and relies on a statutory framework outlining AOS eligibility criteria and the administrative process for adjudicating applications. For those outside the U.S., applicants for permanent residence go through a similar process at a U.S. embassy or consulate abroad, known as “consular processing.” The PM states that AOS is not an entitlement but a discretionary form of “administrative grace,” even where statutory eligibility is met. The PM characterizes AOS as an “extraordinary” remedy that allows applicants to “bypass” the immigrant visa process through consular processing, which the memo describes as the “normal” procedure that “the Congress generally expects aliens to follow.” The PM instructs officers to apply a case-by-case discretionary analysis, weighing positive and negative factors, including immigration violations, failure to maintain status, and failure to depart, as part of a totality of the circumstances assessment.

Who Does This Impact

The PM applies to all AOS applicants, including individuals with:

(1) pending or approved family-based immigrant petitions (Form I-130);
(2) pending or approved employment-based immigrant petitions (Form I-140); and
(3) pending or approved immigrant investor petitions (Form I-526/Form I-526E).

What Is New

The PM reframes AOS as secondary to consular processing. It characterizes AOS as an “extraordinary” form of relief, describes it as an exception that allows applicants to avoid consular processing and states that AOS should be granted sparingly.

What Is Important

The PM directs USCIS officers to evaluate whether an applicant should be granted AOS based on overall equities, including immigration compliance, moral character, family ties to the U.S., and conduct after admission as a nonimmigrant. Officers are instructed to conduct a totality of the circumstances analysis weighing positive against negative factors. The PM also confirms that discretionary denials must articulate why negative factors outweigh positive ones.

The PM elevates certain adverse factors, instructing officers to treat the following as “highly relevant”:

  • Failure to maintain nonimmigrant status;
  • Failure to depart after admission or parole;
  • Conduct inconsistent with the purpose of admission; or
  • Immigration violations or fraud.

The PM states that maintaining lawful nonimmigrant status in dual-intent categories (such as H-1B or L-1) does not automatically guarantee AOS approval; officers are still instructed to apply the totality of the circumstances test using the discretionary factors listed in the PM.

The current Administration has indefinitely suspended the issuance of immigrant visas via consular processing to nationals of 75 countries citing public charge concerns. Notably, the AOS process already includes public charge-related questions, while consular processing currently does not. A finding that an applicant does not warrant the “extraordinary measure” of AOS, combined with the immigrant visa suspension affecting nationals of those 75 countries, could leave a significant number of applicants unable to pursue permanent residence through either pathway. Such a broad suspension of immigrant visas raises questions regarding Congressional intent, given that Congress has statutorily authorized the issuance of 480,000 family-based green cards and 140,000 employment-based each year.

The U.S. embassies and consulates worldwide are also facing capacity constraints following staff reductions, and applicants pursuing consular processing may encounter lengthy wait times for immigrant visas. Applicants with unlawful presence or status violations may trigger a three- or 10-year bar to reentry if they travel abroad and may wish to carefully consider whether to depart and the potential impact on subsequent immigrant visa processing.

Impact on Pending AOS Applications

The PM does not address whether it applies to already pending or newly filed AOS applications. There is no stated effective date, and no specific changes have been made to the USCIS Policy Manual. Because USCIS may seek to apply the PM to pending applications, applicants may consider gathering evidence of positive discretionary factors, including U.S. employment, absence of immigration violations, family and community ties in the U.S., and U.S. investments (particularly for EB-5 investors). USCIS may issue Requests for Evidence (RFEs) seeking documentation to support the totality of the circumstances determination.

Impact on Travel and Work Authorization for AOS Applicants

The PM does not specifically address travel on an advance parole document (AP) or working pursuant to an employment authorization document (EAD) issued while an AOS applicant is pending with USCIS. However, applicants who use AP to travel internationally should be aware that if USCIS seeks to deny the AOS while they are abroad under this guidance, the applicant may face obstacles reentering the U.S. Travel on AP carries additional considerations considering the PM’s publication.

Travel on AP may also disrupt certain types of underlying nonimmigrant status, including B, E, F, J, H-1B1, and O status. Applicants may wish to remain in the U.S. and forego international travel on AP to preserve underlying nonimmigrant status where possible.

What’s Unclear

The PM is subject to a range of interpretations, and its practical application to specific nonimmigrant classifications, including long-term work-authorized categories (dual intent or otherwise), is presently unclear. The PM states that the current statutory framework and the validity of precedent appellate decisions remain unchanged; however, a number of the court decisions cited in the PM are dated or were decided in other contexts, such as removal proceedings and are not directly relevant to AOS applications.

Potential Court Challenges

The PM directs adjudicators to treat AOS as an extraordinary measure secondary to consular processing requiring a showing of “unusual or outstanding circumstances,” which represents a shift in agency practice. Both the statutory interpretation and the reading of case law cited in the PM may become subject to litigation, depending on how the agency’s adjudication practices change.

The AOS statute includes certain exceptions permitting individuals to apply for permanent residence even where they may have violated status, overstayed a visa, or worked without authorization. For example, an immediate relative (such as a spouse or parent of a U.S. citizen) may still apply for AOS without having maintained status or where unauthorized employment occurred. Similarly, the statute provides an exception for certain employment-based applicants who have had a period of unauthorized stay or unauthorized employment of fewer than 180 days. Some of the “negative” factors listed in the PM, including failure to maintain nonimmigrant status and failure to depart after admission or parole, appear to conflict with these statutory exceptions and could form the basis for legal challenge.

Congress has expressly passed the AOS statute permitting these applications. USCIS administers the AOS applications. U.S. federal courts interpret whether policies by USCIS, such as the PM, conflict with Congressional intent or the language of the statute passed by Congress. Litigation in the federal courts may focus on claims under the Administrative Procedure Act (APA), including that the PM constitutes a rulemaking disguised as policy guidance (which would require public notice and comment procedures) and/or that the PM is not in accordance with the law (e.g. the “negative factors” listed in the PM conflict with statutory exceptions that still permit AOS approval).

From a policy standpoint, family reunification has been a longstanding principal of U.S. immigration law. Litigation may also focus on the PM’s expressed limitation of AOS as inconsistent with the statutory framework allowing AOS applications for family reunification, including in cases where an applicant violated status or accrued unlawful presence. For EB-5 applicants, Congress passed the EB-5 Reform and Integrity Act of 2022 (RIA), which explicitly permits the concurrent filing of AOS applications. There may be potential litigation challenges asserting that the PM conflicts with the plain text and Congressional intent of the RIA.

Any forthcoming litigation will likely seek a temporary restraining order (TRO), which could pause the PM from taking effect and being applied to pending cases.

Practical Considerations

  1. Applicants may document positive discretionary factors in newly filed AOS applications, including family ties in the U.S., lawful employment, community involvement, and tax compliance.
  2. Applicants should maintain their underlying nonimmigrant status where possible and may wish to forego international travel on AP.
  3. Applicants with an approved immigrant petition (Form I-130, Form I-140 or Form I526/I-526E) may wish to file Form I-824 with USCIS to initiate an immigrant visa case with the National Visa Center, which may be used in the event of a subsequent AOS denial.
  4. USCIS may issue additional guidance or clarification on the PM. The PM states that USCIS may issue further guidance on certain AOS categories or discrete populations to aid officers in identifying which applications may or may not be affected. USCIS may also clarify its policy positions following further review of the impact on applicants.

The PM may result in increased difficulty in obtaining a green card through the AOS process, particularly for applicants with prior immigration violations or those holding purely nonimmigrant intent visa categories (B-1/B-2, E-1/E-2/E-3, F-1, J-1, TN, H-1B1, and O-1). While the PM signals potential changes to the AOS process, the underlying statute remains unchanged and the PM may be subject to court challenge.