Does USCIS’s New AOS Memo Quietly Recognize EB-5? A Cautious Read of the “Economic Benefit” Language
On the Friday before Memorial Day weekend, USCIS released a policy that sent ripples through the immigration community. Headlines called it a sweeping change, a crackdown, the end of adjustment of status (AOS) as we know it. The first public statement from agency spokesman Zach Kahler did earn that reaction. Temporary visa holders who want a green card, he said, “must return to their home country to apply, except in extraordinary circumstances.”
That language is stark. When I got the first of about 47 texts about it on Friday evening, I thought… well, I wasn’t encouraged.
But as is so often the case with Trump administration policy announcements, the full picture is more nuanced than the initial press release suggested. It turns out that for EB-5 investors specifically, I think the right posture is cautious optimism rather than alarm. Here is what happened, what we know (so far), what we don’t, and why EB-5 sits in a uniquely strong position relative to the rest of the AOS universe.
What the Memo Actually Says — and What It Carefully Doesn’t
USCIS Policy Memorandum PM-602-0199, dated May 21, 2026, reframes adjustment of status — the process by which someone already inside the United States can obtain a green card without leaving for a consular interview abroad — as “a matter of discretion and administrative grace” and “an extraordinary relief.” Officers are instructed to weigh an applicant’s full immigration history, including compliance with prior status, any prior misrepresentation, and whether the decision to file in the United States is consistent with the applicant’s prior conduct and stated intentions.
USCIS is obviously framing AOS to accomplish the Trump administration’s broader policy goal of limiting immigration. Not surprisingly, the memo cites a number of cases that seem to support its view, namely Matter of Blas (1974), Chen v. Foley (1967), Matter of Marin (1978), and a string of circuit court applications of those older precedents; even less surprisingly, the memo glosses over or omits authorities that cut the other way. Bill Stock at Klasko Immigration Law Partners and the always incisive Cyrus Mehta have each written sharp, detailed legal critiques of this asymmetry. Their basic point: INA §245(a) is a statute, not a loophole, and Congress has repeatedly expanded — not contracted — the AOS pathway in the decades since the cases USCIS leans on were decided. §245(i), §245(k), VAWA self-petitioning, and (more on this in a moment) the EB-5 Reform and Integrity Act of 2022 all show Congress moving the other direction.
As Phuong Le of KLDP reminded everyone on that Friday afternoon, Trump administration policy announcements of this magnitude are routinely “clarified” within days, almost always met with immediate litigation, and frequently look different in operation than they did in the press release. This pattern seems very likely to hold here. In fact, the first clarification has already begun.
The Statement That Matters
Later the same afternoon, in what CBS News described as a separate statement, Kahler walked back the breadth of the initial announcement. He said:
"After years of ignoring the intent of Congress in the adjustment of status application, USCIS is merely restating and reasserting that intent. While we work to operationalize this, people who present applications that provide an economic benefit or otherwise are in the national interest will likely be able to continue on their current path while others may be asked to apply abroad depending on individualized circumstances"
-Zack Kahler, Agency Spokesman
Read that carefully. “Economic benefit” and “national interest.”
These are not casual words. They are a signal, drawn directly from existing concepts in immigration law (the “national interest waiver” is its own well-developed body of doctrine). And for EB-5 investors, who are by statutory definition required to deploy capital in U.S. businesses and create jobs for American workers, that language is a very important signal indeed.
EB-5 isn’t a back door. EB-5 investors are not entering on tourist visas hoping no one notices. They are committing $800,000 to $1,050,000 to U.S. businesses and projects, creating a minimum of 10 full-time American jobs per investor, after multi-year scrutiny of the source and path of their funds. Congress created the EB-5 program in 1990 for exactly this purpose: to channel foreign capital into the U.S. economy and put Americans to work. The economic benefit isn’t incidental to EB-5. It is EB-5.
The RIA Argument: 2022 > 1974
Here’s the legal argument I think the immigration bar will sharpen over the coming weeks, and it’s the one that matters most for EB-5: the cases USCIS cites are old, and Congress has spoken since.
Matter of Blas is from 1974. Chen v. Foley is from 1967. The bulk of the circuit-court precedents the memo strings together apply those older cases to later facts. The most recent comprehensive expression of congressional intent on EB-5 adjustment is the EB-5 Reform and Integrity Act of 2022 (the RIA), passed just four years ago.
The RIA explicitly authorized concurrent filing of EB-5 petitions and I-485 adjustment applications when visas are current. That is not a hedged or implicit endorsement of AOS for EB-5. That is Congress affirmatively designing a pathway for EB-5 investors to file inside the United States. Whatever the Board of Immigration Appeals (BIA) said in 1974 about adjustment being “extraordinary,” Congress in 2022 said something rather different about EB-5 specifically: if you’re a lawful nonimmigrant and are willing to make a substantial investment and create jobs to stay permanently, we have built you a path.
The argument is unusually strong here precisely because it doesn’t require disagreeing with Matter of Blas. It just requires reading Matter of Blas alongside the most recent statute Congress has actually passed on point.
Good News for H, L, and F Visa Holders, Too
There is another piece of the memo worth highlighting for the broader investor and high-skilled worker community: it explicitly acknowledges dual intent.
H-1B and L-1 visa holders, by long-standing law, can legally hold both a temporary nonimmigrant intent and a desire to become permanent residents. The memo states that filing for adjustment of status is not inconsistent with maintaining lawful nonimmigrant status in a dual-intent category. The law has always recognized this; the new memo doesn’t change it. But by citing dual intent explicitly, USCIS has made clearer that H and L holders pursuing a green card through EB-5 (or any other legitimate pathway) are on solid ground.
The dual-intent acknowledgment, however, is a floor, not a ceiling, on who qualifies under the “economic benefit” framework. F-1 students, particularly those who have completed degrees at U.S. universities and are working under Optional Practical Training (OPT) or STEM-OPT extensions, are obvious candidates as well. President Trump himself has made the case about as plainly as anyone could: in a June 2024 podcast appearance, he said that any foreign graduate of a U.S. college “should get automatically as part of your diploma a green card to be able to stay in this country.” His point was the obvious one: it makes no sense for the greatest university system in the world to train the world’s best and brightest and then send them home to compete against us.
That logic applies with even more force to the F-1 graduate who is also prepared to put $800,000 — and soon, with the 2027 inflation adjustment, $900,000 to $950,000, depending on final CPI data — of their own capital at risk in a U.S. business and create at least 10 full-time American jobs as a condition of staying. If anyone embodies “economic benefit” and “national interest” in a single person, it’s the EB-5 investor who started as an F-1 student.
What about other lawful nonimmigrants who choose EB-5? Yes, the same logic applies to O-1 extraordinary ability visa holders, E-1 and E-2 treaty traders and investors, TN professionals from Canada and Mexico, and J-1 researchers and physicians, among others. That matters for a real and growing segment of EB-5 investors. Many Civitas investors are, or were, in the United States in H-1B, L-1, F-1, or some other nonimmigrant status. They are accomplished professionals and graduates contributing meaningfully to American companies and institutions, and they want to make their lives here permanent. The AOS memo, carefully read, supports their ability to continue on that path.
EB-5 Is America First
I have said this before, and I will keep saying it: EB-5 is an America First program. Full stop.
IIUSA, where I proudly serve on the board, last year commissioned econometric consulting firm Fourth Economy to study EB-5’s economic impact. The researchers found that from 2016-2019, the EB-5 program generated $184 billion to U.S. GDP and $75 billion in private investment, created 1.7 million jobs, and raised $14.5 billion in tax revenues, all at zero cost to U.S. taxpayers. Every EB-5 investor is a net economic contributor from day one. They are not here to take. They are here to invest, to build, and to create opportunity for American workers.
Tough scrutiny is appropriate. Every immigration program (for that matter, every government program of any kind) should have to justify itself on the merits. The EB-5 program clears that bar with room to spare. It is investment-driven, job-creating, economically self-sustaining, and aligned with American interests by design.
The USCIS “economic benefit” carve-out suggests the agency understands this, at least in the abstract. Whether that translates into how the memo is operationalized for EB-5 specifically is the question we will be watching over the next several months.
What EB-5 Investors Should Do Now
For investors with pending or planned I-485 filings, the practical message is this: make sure you have excellent EB-5 counsel, and document everything. The new policy environment rewards investors who build a complete, affirmative record not just of their EB-5 eligibility and admissibility, but of the economic contribution their investment represents. That means thorough documentation of the investment, job creation metrics, lawful source and path of funds, and continuing compliance throughout the process.
This is not new. We have always believed that rigorous, transparent, well-documented EB-5 cases are the best EB-5 cases. What the new memo does is make explicit that this best practice matters more than ever in the adjustment of status context.
The Bottom Line
PM-602-0199 is a real development, and every EB-5 investor with a pending or planned adjustment filing should review it carefully with their immigration counsel. But I am cautiously optimistic that the most alarmist readings will not hold up.
USCIS walked back the broadest reading of the memo the same day it was issued. The “economic benefit” language is a meaningful carve-out, and EB-5 investors live squarely within it. The case law the memo cites is decades older than the EB-5 Reform and Integrity Act, which expressly designed an AOS pathway for EB-5 investors. And the H, L, and F angles together support the substantial slice of EB-5 investors already living, learning, and working lawfully in the United States.
More broadly, this moment reinforces what I have believed since we founded Civitas more than 15 years ago: the EB-5 program’s strength is its alignment with American economic interests. The question USCIS now claims to be asking — who provides “economic benefit” or is in the “national interest” — is exactly the question Congress answered when it created the EB-5 program in 1990 and reaffirmed in the RIA in 2022. EB-5 investors put their own capital at risk to invest in this country and create jobs for its workers. They are exactly who Congress intended to welcome.
That isn’t just good immigration policy. That is America First in action.
Dan Healy is co-founder and CEO of Civitas Capital Group, a Dallas-based private investment manager and one of the nation’s leading EB-5 regional center operators. Civitas has served over 1,700 investors from more than 50 countries since 2009. Views expressed are his own and do not constitute legal or investment advice. Forward-looking statements regarding regulatory thresholds are estimates only and subject to change. Consult qualified immigration counsel regarding your specific situation.
