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The E-2 visa has long been a popular option for entrepreneurs, investors, and employees seeking to live and work in the United States by investing in or working for a qualifying U.S. business. Historically, the U.S. Embassy in London has been a predictable and efficient post for processing E-2 visas, with interviews typically lasting only a few minutes and focusing on a cursory review of the application. However, recent developments have introduced significant changes to the process, requiring applicants to approach their interviews with greater preparation and awareness.

Key Changes in E-2 Visa Processing at the U.S. Embassy London

Over the past year, applicants and immigration practitioners have reported notable shifts in the E-2 visa interview process at the U.S. Embassy in London. These changes include longer interviews, more in-depth questioning, and an increase in unexpected refusals under INA 214(b). To address these concerns, representatives from the American Immigration Lawyers Association (AILA) engaged in discussions with consular leadership at the embassy. While consular officials confirmed that no changes have been made to the laws, regulations, or policy guidance governing E-2 visas, they did provide insights into procedural adjustments that may impact applicants.

1. Interview Environment

E-2 visa interviews are now conducted on a separate floor from other nonimmigrant visa classifications. Applicants are grouped with individuals undergoing Visa Control Unit interviews, which typically involve cases with potential criminal or inadmissibility issues. This setup offers limited privacy, which may add to the stress of the interview process.

2. Rotating Pool of Consular Officers

Unlike in the past, there is no dedicated E visa officer at the U.S. Embassy in London. Instead, interviews are conducted by a rotating pool of 14 consular officers, with two officers assigned to review E visa applications each day. This lack of specialization may lead to inconsistent adjudications, as officers may vary in their familiarity with E-2 visa requirements and nuances.

3. Longer and More Detailed Interviews

Interviews for E-2 corporate registrations and individual applicants are now lasting up to 30 minutes, compared to the brief interviews of the past. Applicants should be prepared to answer detailed questions about their business operations, financials, and role within the company. Examples of questions for corporate registrations include:

  • What is your U.K./U.S. revenue this year and last year?
  • Can you explain your business plan?
  • What were your start-up expenses, and what is their price/value?

For individual applicants, questions may focus on:

  • Why is your company expanding or operating in the United States?
  • Why are you being sent to the United States, and why can’t your U.S. colleagues cover your role?
  • Is your U.S. company profitable?
  • Will you be seeking a green card eventually?
  • Are you aware that an E-2 visa does not provide a pathway to a green card?

4. Increased Scrutiny

Applicants with limited business experience or those unable to provide detailed answers may face heightened scrutiny. Additionally, the embassy appears to be applying the “Buy American Hire American” (BAHA) lens, which asks applicants to justify why an American worker cannot perform their proposed U.S. job duties. This aligns with the broader “America First Policy Directive” that prioritizes U.S. workers and businesses.

Implications for Applicants

The procedural changes at the U.S. Embassy in London have implications for E-2 visa applicants:

  • Thorough Preparation is Essential: Applicants must be ready to discuss their business operations, financials, and role in detail. This includes having a clear understanding of their business plan, start-up expenses, and the rationale for their presence in the United States.
  • Risk of Refusal: Unexpected refusals under INA 214(b) have become more common. A refusal may also impact an applicant’s eligibility to visit the United States under the Visa Waiver Program (ESTA), further complicating future travel plans.
  • Inconsistent Adjudications: The rotating pool of consular officers may lead to variability in interview experiences and outcomes. Applicants should be prepared for a range of questions and approaches.

Key Considerations

Given the evolving landscape of E-2 visa processing in London, applicants should consider taking the following steps to maximize their chances of approval:

  1. Work with Experienced Counsel: Consulting with an experienced immigration attorney can help ensure applications are complete, accurate, and tailored to address potential concerns.
  2. Prepare for In-Depth Questions: Practice answering detailed questions about business operations, financials, and role within the company. Applicants should be ready to articulate why their presence in the United States is essential.
  3. Document Everything: Provide clear and organized documentation to support an application, including financial statements, business plans, and evidence of the applicant’s qualifications.
  4. Understand the Limitations of the E-2 Visa: Be aware that the E-2 visa does not provide a direct pathway to permanent residency (a green card). Applicants should be prepared to address this if asked during their interview.

Conclusion

The U.S. Embassy in London has introduced changes to its E-2 visa interview process, making it more rigorous and unpredictable than in the past. Applicants should consider approaching their interviews with thorough preparation, a clear understanding of their business and role, and a willingness to address detailed questions. By staying informed and working with experienced professionals, applicants can navigate these challenges and increase their chances of a successful outcome.

On May 1, 2019, the E-2 Treaty Investor Visa may be available to Israeli citizens wishing to make a substantial investment in or set up a business in the United States. After several rounds of negotiations between the two countries and U.S. citizens already able to obtain a B-5 Israeli Investor visa, the United States is expected to approve the proposed May 1 launch date in early April.

The E-2 Visa grants qualified treaty investors and employees, as well as their dependent family members, a maximum initial stay of two years. Extensions may be granted in increments of up to two years, with no maximum limit so long as the E-2 nonimmigrant maintains an intention to depart the United States when their status expires or is terminated.

To qualify, the United States Citizenship and Immigration Services (USCIS) indicates a treaty investor must show at least 50 percent ownership of the enterprise or possession of operational control through a managerial position or other corporate device. The enterprise must have the present or future capacity to generate more than enough income to provide a minimal living for the treaty investor and his or her family. In addition, the treaty investor must risk a substantial amount of capital with the objective of generating a profit.

Given the flexibility of the E-2 Visa and Israel’s prominent position in the hi-tech sector, this new development has great potential to advance Israeli business interests and streamline entrepreneurial ventures.

For more on E-2 visas, click here.

As an update to an earlier post, on Aug. 1, the president signed the Knowledgeable Innovators and Worthy Investors Act (KIWI Act) granting E-1 and E-2 status to certain New Zealand nationals under mutual considerations. This will permit citizens of New Zealand to apply for U.S. visas to carry on significant trade with the United States (E-1) or after making a substantial investment in the United States (E-2). The KIWI Act is now designated as Public Law 115-226 (132 STAT. 1625).

For more information on E-Visas, click here.

May 2026, United States Citizenship and Immigration Services (USCIS) issued a policy memorandum signaling a shift in how employment-based permanent residence cases may be processed. The memorandum encourages adjudicators to deny adjustment of status (Form I-485) applications rather than issue requests for evidence (RFEs) in appropriate cases, with the expectation that many applicants could instead pursue immigrant visa processing abroad through U.S. consulates.

Considered alongside the current state of the Department of State (DOS), the policy raises an important question: can DOS realistically absorb an increase in these cases?

Recent reports suggest the answer is uncertain. Also see our June 2026 blog post on early implementation trends.

A Department Under Strain

A recent Financial Times article describes challenges facing the DOS. More than half of U.S. ambassadorial positions reportedly remain vacant, staffing has been reduced by more than 20%, and over 3,000 employees have departed. Career diplomats have been replaced at historically low rates, while consular sections – already managing high visa demand – are expected to operate with fewer personnel and reduced institutional experience.

Although embassies continue operating under Chargés d’Affaires, leadership vacancies and workforce reductions affect efficiency, consistency, and the DOS’ capacity to process complex immigration matters.

For years, employment-based applicants have generally viewed adjustment of status as the more predictable path to permanent residence because it allows them to remain in the United States while USCIS adjudicates the case. If a growing number of applicants are instead required to complete processing through U.S. consulates overseas, the operational realities at DOS become important.

What This Could Mean for Employment-Based Applicants

Longer Processing Times

Shifting cases from USCIS to DOS may transfer existing backlogs from one agency to another rather than reduce overall processing times.

Employment-based immigrant visa cases often require coordination across multiple government agencies, including the National Visa Center and the applicable U.S. embassy or consulate. Reduced staffing and fewer available interview appointments could lengthen the time required to complete permanent residence processing.

For employers planning workforce transitions or international recruitment, these delays may create uncertainty.

Greater Risk of Status Gaps

A key advantage of adjustment of status is that applicants may remain lawfully present in the United States while the application is pending.

Applicants pursuing consular processing, however, face a different set of challenges.

If an individual reaches the end of their underlying nonimmigrant status before an immigrant visa interview becomes available, questions may arise regarding whether they can lawfully remain in the United States while waiting for overseas processing. Depending on the facts of the case, applicants may need to maintain an independent nonimmigrant status for a longer period than originally anticipated.

This is particularly important for employees whose H-1B, L-1, E-2, TN, or other temporary status may be approaching expiration.

Employment Authorization May No Longer Be Available

Applicants adjusting status in the United States generally become eligible to obtain employment authorization documents (EADs) and advance parole while their Form I-485 is pending.

Applicants pursuing immigrant visa processing abroad generally do not receive these interim benefits.

As a result, employers may need to rely on extensions of underlying work-authorized status. Where extensions are unavailable, interruptions in employment authorization are a possibility worth planning for.

Travel and Mobility Challenges

Adjustment applicants typically receive advance parole allowing international travel while their green card application is pending.

Consular processing requires applicants to coordinate travel, visa interviews, medical examinations, and international logistics. Delays in visa issuance following an interview can result in employees remaining abroad for an extended period, disrupting business operations and personal obligations.

Variability in Visa Adjudications

Reduced staffing may also affect consistency.

Officers handling complex employment-based immigrant visa cases with less experience may produce greater variation in adjudications. Applicants and employers should anticipate more detailed interview preparation and more comprehensive supporting documentation.

Practical Considerations for Employers

Employers sponsoring permanent residence should evaluate whether employees have a viable strategy for maintaining work authorization if processing extends beyond original expectations.

Considerations include:

  • Reviewing expiration dates for underlying nonimmigrant status.
  • Identifying employees who may require additional H-1B, L-1, or other status extensions.
  • Preparing for longer overseas processing timelines.
  • Assessing business continuity if key personnel must remain abroad pending visa issuance.
  • Building additional time into onboarding and workforce planning.

Looking at the Broader Picture

These developments may represent more than a temporary adjustment.

If USCIS increasingly directs applicants toward consular processing while DOS continues operating with reduced staffing and leadership vacancies, employment-based immigration processing may experience changes affecting where cases are adjudicated and the timing of permanent residence processing.

Immigration strategies that assumed adjustment of status as the default path warrant review, with greater attention to maintaining nonimmigrant status, preserving uninterrupted work authorization, and preparing for longer and more complex consular processing.

As federal immigration agencies continue to evolve, permanent residence planning will benefit from evaluating how the immigration system functions as an interconnected whole rather than focusing on any single agency’s policy change in isolation.

In this episode of the Immigration Insights Podcast, co-chairs of Greenberg Traurig’s Global Immigration & Compliance Practice Kate Kalmykov and Courtney Brooks discuss how artificial intelligence is transforming USCIS adjudications and what employers and applicants need to know to stay ahead of an increasingly demanding compliance environment.

The hosts explain that Requests for Evidence (RFEs) have surged across all visa categories and are now broader, more detailed, and informed by data pulled from external sources including government databases, business registries, and social media. AI is enabling officers to cross-reference filings with a speed and thoroughness that was not previously possible, making consistency across filings, organizations, and time a critical concern.

Kate and Courtney walk through the key visa categories most affected including H-1B, L-1, O-1 and EB-1A petitions. National Interest Waiver denials and RFEs have risen sharply, with officers pressing for measurable, demonstrable impact.

On the I-9 compliance front, enforcement has intensified, penalties have increased, and AI is being used to map related corporate entities and extend audits across them. Unprecedented cross-agency coordination among USCIS, ICE, DOL, IRS, SSA, and CBP means that tax, payroll, and other records are now readily accessible to adjudicators across contexts.

The hosts close with practical takeaways: to centralize and standardize immigration filings, conduct proactive internal audits, use AI tools to anticipate what the government may find, prepare thorough documentation upfront, and communicate transparently with employees about the current climate. Both agree that AI-driven adjudication is here to stay and that organization, consistency, and preparation are the keys to navigating it successfully.

In this episode of the Immigration Insights Podcast, host Kate Kalmykov and her colleague Jennifer Hermansky, both members of Greenberg Traurig’s Global Immigration & Compliance Practice, break down the most pressing developments in the EB-5 regional center program as a critical deadline approaches.

The discussion opens with a detailed explanation of the Sept. 30 grandfathering deadline established under the EB-5 Reform and Integrity Act (RIA). Investors who file their I-526E petition before that date will be protected in their immigration journey regardless of whether Congress reauthorizes the EB-5 program beyond its current sunset date of Sep. 30, 2027.

The hosts explain what grandfathering does and does not protect, including the anticipated inflation-based investment amount adjustment coming in January 2027, the continued applicability of the Child Status Protection Act, and the potential for Congress to introduce new program requirements upon reauthorization.

Kate and Jen offer practical guidance for investors seeking to file before the deadline, emphasizing the importance of early preparation, thorough source of funds documentation, and avoiding last-minute filings.

A significant portion of the episode is also devoted to a series of favorable Administrative Appeals Office (AAO) decisions overturning USCIS denials in cases involving partial investments.

The episode concludes with breaking news: on the day of recording, July 1, USCIS released its long-awaited Notice of Proposed Rulemaking implementing the RIA more than four years after the law’s enactment. Kate and Jen note that there will be follow-up podcast and detailed analysis once they have completed their review!

When USCIS issued its May 21 memorandum emphasizing consular processing as the preferred pathway for many intending immigrants seeking permanent residence, the immigration community began raising questions. Would adjustment of status (AOS) applications become more difficult to approve? Would USCIS begin issuing widespread requests for evidence (RFEs) challenging applicants’ eligibility to adjust status in the United States? Would employment authorization and travel documents be affected? Would foreign nationals already pursuing AOS face increased scrutiny at interviews?

Now two weeks later, while it remains too early to draw definitive conclusions, implementation so far has been more measured than many initially anticipated. As is often the case with major immigration policy announcements, the practical impact of a memorandum depends not only on the language of the policy itself but also on how adjudicators interpret and apply that guidance in individual cases. Patterns are beginning to emerge, though the type of widespread disruption some stakeholders anticipated has not yet materialized. For a discussion of the memorandum, stream GT’s Immigration Insights Podcast Episode 25.

A Brief Reminder: What Did the Memorandum Do?

The memorandum signaled USCIS’s preference that many intending immigrants pursue immigrant visa processing abroad through U.S. consulates rather than AOS from within the United States. For decades, AOS has served as a critical pathway allowing eligible foreign nationals already present in the United States to complete the permanent residence process without departing the country. The memorandum raised concerns because it appeared to encourage greater scrutiny of adjustment filings and potentially shift adjudicative discretion toward consular processing in certain circumstances. Because AOS offers significant practical advantages – including the ability to remain in the United States while a case is pending, obtain employment authorization, and avoid many uncertainties associated with overseas visa processing – the memorandum generated concern among employers, foreign nationals, and immigration practitioners.

What Are We Seeing So Far?

While every case is unique, several trends have emerged during the first two weeks following issuance of the memorandum.[1]

Adjustment Applications Continue to Be Approved

Many AOS applications filed before the memorandum was issued continue to be approved, including for applicants in valid F-1, H-1B, and L-1 status. To date, there has been no indication of a blanket slowdown or freeze affecting adjustment applications that were already pending when the memorandum was released.

Employment Authorization and Travel Documents Continue Moving Forward

There are continued approvals of employment authorization documents (EADs) and advance parole (AP) applications filed in connection with AOS cases.

This is significant for applicants relying on adjustment-based work authorization or travel permission while awaiting a decision on their green card applications.

Adjustment Interviews Continue

Adjustment interviews at local USCIS field offices are continuing without apparent interruption. There is variation in how officers appear to be approaching the memorandum. In some interviews, applicants have reported that the memorandum was not discussed at all, with officers focusing on traditional adjustment issues such as admissibility, maintenance of status, employment history, family relationships, and application accuracy. In other interviews, applicants have reported being asked why they chose AOS rather than consular processing, a line of questioning consistent with the language and policy objectives reflected in the memorandum. At this stage, these questions may be exploratory rather than outcome-determinative. The fact that some officers are raising the issue suggests that field offices are aware of the guidance and may be incorporating it into interview practices.

Limited Reports of Requests for Evidence

One concern following the memorandum was whether USCIS would begin issuing RFEs requiring applicants to justify why AOS is appropriate in lieu of consular processing. While practitioners around the country have reported receiving such RFEs in some cases, our office has not yet received any RFEs specifically seeking that explanation. The relatively short period since the memorandum’s issuance makes it difficult to assess whether such requests will become more common. Historically, USCIS implementation of major policy changes often varies by field office, service center, and adjudicator before more consistent practices emerge. As additional cases move through the system, we may gain greater insight into whether these RFEs represent isolated examples or the beginning of a broader adjudication trend.

No Significant Travel Issues Reported

Travel concerns were another area of uncertainty following the memorandum. Many applicants questioned whether travel on AP or travel in H-1B and L-1 status could become more complicated if USCIS adopted a stronger preference for consular processing. To date, we have not received reports from clients indicating unusual travel-related complications attributable to the memorandum.

A Growing Interest in Preserving Consular Processing Options

One practical response is increased interest in maintaining flexibility. Some individuals with approved immigrant petitions are electing to file Form I-824, Application for Action on an Approved Application or Petition, to preserve the possibility of consular processing should they decide – or be required – to pursue that route in the future. While filing Form I-824 is not necessary or advisable in every case, it reflects a broader trend among applicants seeking to keep multiple options available while the long-term impact of the memorandum becomes clearer. For certain individuals, particularly those with international travel obligations, complex immigration histories, or concerns about future policy developments, preserving optionality may be a prudent strategic consideration.

Considerations for Employers and Foreign Nationals

The memorandum is significant, but the implementation data available today does not support the conclusion that AOS is no longer viable or that applicants should automatically abandon pending or planned adjustment filings in favor of consular processing.

Each case warrants careful evaluation on its own merits. Factors such as immigration status, travel needs, country of citizenship, visa availability, processing times, family circumstances, and long-term immigration objectives should continue to drive strategic decision-making. For many applicants, AOS may remain the preferred and most practical path to permanent residence. For others, preserving consular processing as a backup option may provide additional flexibility. Immigration strategy is most effective when tailored to the individual circumstances of the applicant.

Looking Ahead

The first two weeks following the memorandum have provided some initial data points, but many questions remain unanswered. As additional cases move through interviews and adjudication, we expect to gain greater visibility into how field offices and service centers interpret the guidance. There may also be further policy clarification from USCIS, additional stakeholder engagement, new adjudication trends, and potentially litigation that could affect implementation. For now, AOS cases continue to move forward – applications are being approved, interviews are being conducted, employment authorization and travel documents continue to be issued.

[1] Disclaimer: The observations discussed in this blog post are based on our firm’s cases and discussions with colleagues throughout the immigration bar during the first two weeks following issuance of the memorandum. These observations are anecdotal in nature, may not be representative of all USCIS offices, adjudicators, or case types, and should not be viewed as predictive of any individual case outcome.

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.

In this episode of GT’s Immigration Insights podcast, host Kate Kalmykov is joined by Greenberg Traurig colleague Gennette Faust for an in-depth discussion on the U.S. tax implications that high-net-worth foreign nationals must carefully consider before obtaining a green card or establishing U.S. tax residency.

The discussion covers the critical importance of pre-immigration tax planning, including why asset structures that work well for non-U.S. persons often become highly inefficient — and potentially costly — once an individual becomes a U.S. taxpayer.

Gennette explains key concepts such as the substantial presence test, the step-up in tax basis, passive foreign investment companies (PFICs), anti-deferral regimes, foreign tax credits, and the potential for double taxation. She also addresses why timing matters and why engaging a tax advisor at least one year before establishing U.S. residency is strongly recommended.

Kate and Genette further explore the interplay between tax and immigration strategy, including the risks created when tax advice conflicts with immigration compliance obligations, the estate and gift tax implications of U.S. residency, and the U.S. expatriation tax regime as it applies to both citizens and long-term green card holders.

The episode concludes with a practical discussion on how carefully coordinating immigration and tax counsel and thoughtfully timing the acquisition of U.S. residency can result in significant long-term financial benefits for globally mobile individuals and families.

Click here to listen to the full episode.

Host and Co-Chair of Greenberg Traurig’s Global Immigration & Compliance Group, Kate Kalmykov, welcomes Kelly Bunting, GT colleague and labor and employment practice shareholder, to discuss the complex overlap between US immigration and employment law.

They explore current challenges facing employers, including social media issues, religious and disability accommodations, wage and hour litigation, and heightened compliance in M&A deals.

Kelly offers practical insights on drafting cross-border employment agreements, managing restrictive covenants, and training managers to avoid liability.

The episode highlights the importance of coordinated efforts between immigration and employment counsel, especially when onboarding foreign nationals and maintaining compliance.

Tune in to gain actionable tips for handling workforce issues in a dynamic legal environment and the ongoing competition for global talent.

Click here to listen to the full episode.