EB-5 and the New Shift in U.S. Green Card Processing: What Applicants Inside the U.S. Need to Know

Recent policy developments from U.S. Citizenship and Immigration Services (USCIS) signal a meaningful shift in how green card applications are evaluated for individuals already in the United States on nonimmigrant visas.

While the EB-5 program and Adjustment of Status (AOS) pathway remain legally available, the practical landscape for applicants inside the U.S. is becoming more complex and more discretionary.

For individuals currently in the U.S. on visas such as F-1, H-1B, L-1, E-2, or O-1—especially those considering EB-5 as a pathway to permanent residency—this change is particularly relevant.

A Shift in How Adjustment of Status Is Viewed

Under new USCIS guidance, Adjustment of Status is being more explicitly framed as a discretionary benefit rather than a routine procedural pathway.

Officers are instructed to evaluate not only eligibility, but also whether an applicant should be granted the ability to adjust status inside the U.S. or instead pursue consular processing abroad.

In other words, even when an applicant is technically eligible, USCIS may now weigh broader contextual factors before approving adjustment in the United States.

The agency has emphasized that any negative factor in an applicant’s history may be considered in the discretionary analysis. This includes, for example:

• prior immigration violations or status gaps

• unauthorized employment

• problematic or inconsistent immigration history

• certain entry patterns or prior visa behavior

At the same time, applicants may be expected to present stronger affirmative justification showing why adjustment in the U.S. is warranted.

In a response to questions from The Washington Post about how many green-card applicants would be affected by the new guidelines and which groups would be afforded an exception, Kahler said applicants who “provide an economic benefit or otherwise are in the national interest” would continue to be permitted to apply from inside the country.

Dual Intent vs Non–Dual Intent Visa Holders

It is important to distinguish between different categories of nonimmigrant visa holders.

For applicants in dual intent visa categories—such as H-1B (specialty occupation workers), L-1 (intra-company transferees), and O-1 (extraordinary ability individuals)—this policy shift is likely to have a more limited practical impact, since these visa types already allow intent to immigrate.

However, for individuals transitioning from non–dual intent visa categories, the impact may be more noticeable. These include:

• F-1 student visas

• B-1/B-2 visitor visas

• J-1 exchange visitor visas (in many cases)

• certain short-term or temporary stay categories

Applicants in these categories are more closely tied to the requirement of maintaining temporary intent, and therefore may face increased scrutiny when applying for Adjustment of Status based on EB-5 or other immigrant pathways.

Adjustment of Status Is Still Available — But Less Predictable

Despite media interpretations suggesting otherwise, AOS has not been eliminated.

It remains a core mechanism for green card processing and continues to offer significant advantages, including:

• the ability to remain in the U.S. during processing

• eligibility to apply for work authorization

• eligibility for advance parole travel authorization (in many cases)

However, recent reporting indicates a broader policy direction that favors consular processing abroad as the “default expectation,” with AOS increasingly treated as an exception requiring justification.

This approach aligns with a long-standing interpretation of the U.S. immigration system rooted in the Immigration and Nationality Act of 1952, which grants the government authority over how permanent residence is processed and adjudicated.

What This Means for EB-5 Applicants Already in the U.S.

For EB-5 investors who are currently residing in the United States on nonimmigrant visas, this policy environment introduces several important considerations.

1. EB-5 concurrent filing remains possible—but more sensitive

For eligible applicants, EB-5 concurrent filing (I-526E + I-485 Adjustment of Status) continues to be a strategic option. However, the discretionary layer in adjudication means that outcomes may depend more heavily on the strength of the overall immigration record—not just EB-5 eligibility.

2. Immigration history matters more than before

Applicants with even minor past issues (such as overstays, unauthorized employment, or visa inconsistencies) may face increased scrutiny in AOS adjudications.

3. Consular processing risk becomes more relevant

If USCIS determines that discretion does not favor AOS approval, applicants may be directed to complete the immigrant visa process at a U.S. consulate abroad. For some individuals, this introduces additional uncertainty, including:

• travel requirements

• potential delays

• country-specific consular backlogs

• re-entry considerations depending on status

4. Strong documentation is becoming essential

Applicants pursuing EB-5 from inside the U.S. may need to build a more comprehensive case demonstrating:

• lawful immigration history

• clear source of funds documentation

• consistent maintenance of status

• strong equities in the United States (where applicable)

  
  

Bottom Line

EB-5 remains a viable and important pathway to U.S. permanent residency for individuals already in the United States. However, the environment around Adjustment of Status is shifting toward greater discretion and less predictability.

For applicants on nonimmigrant visas considering EB-5, the impact will vary: those in dual intent categories may see relatively limited change, while those transitioning from non–dual intent statuses are likely to feel the shift more directly.

In all cases, timing, strategy, and documentation are becoming more important than ever in determining whether adjustment inside the U.S. is ultimately granted.