Dear Clients and Colleagues,
We hope this newsletter finds you well. In this edition, we bring you important updates on various immigration matters. Please take a moment to review the following key highlights:
USCIS Clarifies Adjustment of Status Policy After May 22 Memo: Is Adjustment of Status Really Limited to “Extraordinary Circumstances”?
The immigration community was caught by surprise on May 22, 2026, when U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 and an accompanying press release declaring that adjustment of status (AOS) is an “extraordinary” form of relief and that foreign nationals generally should pursue immigrant visas through consular processing abroad rather than obtain permanent residence from within the United States.
The announcement immediately generated concern among employers, foreign workers, students, investors, and family-based immigrants because it appeared to suggest that USCIS intended to severely restrict Form I-485 Adjustment of Status approvals and require many applicants to leave the United States for immigrant visa processing at U.S. consulates abroad.
According to the May 22 policy announcement, USCIS officers are instructed to exercise discretion and determine whether an applicant merits adjustment of status as an extraordinary benefit rather than treating adjustment as a routine administrative process. The agency emphasized that adjustment of status is not an entitlement and that officers must evaluate all favorable and unfavorable factors before granting lawful permanent residence.
For many immigration practitioners, the language of the memo raised concerns that USCIS was signaling a major shift away from the adjustment process that has been used for decades by employment-based and family-based immigrants.
However, within days of the announcement, subsequent statements from Department of Homeland Security (DHS) representatives and USCIS officials suggested that the practical impact of the policy may be significantly narrower than initially feared.
Subsequent DHS Clarifications Suggest a More Limited Impact:
Following widespread concern among employers and immigrant communities, DHS officials reportedly clarified that the memorandum does not automatically require applicants to leave the United States or pursue consular processing abroad.
Rather, immigration officers will continue to evaluate adjustment applications on a case-by-case basis using discretionary authority that has always existed under Section 245 of the Immigration and Nationality Act.
In other words, the memo appears to reinforce the discretionary nature of adjustment of status rather than creating a new legal requirement that applicants depart the United States.
No Automatic Departures:
One of the biggest fears following the release of the memo was that individuals with pending or future I-485 applications would be forced to leave the United States and process immigrant visas abroad.
Subsequent agency statements indicate that this interpretation is likely too broad.
Adjustment of status remains available under existing statutory provisions, and USCIS officers will continue to evaluate each case individually based on the totality of the circumstances.
What Has Changed?
The most significant change appears to be the manner in which USCIS officers will evaluate discretionary factors in adjustment cases.
Officers are expected to place greater emphasis on:
- Immigration history and maintenance of lawful status;
- Unauthorized employment;
- Status violations;
- Criminal history and public safety concerns;
- Compliance with visa conditions;
- Payment of taxes and employment history;
- Family ties and humanitarian considerations;
- Community involvement;
- Overall positive and negative equities.
The memorandum signals that USCIS intends to conduct a more comprehensive discretionary review rather than simply determining whether an applicant satisfies the minimum statutory requirements.
Who May Face Greater Scrutiny?
Although the policy does not appear to eliminate adjustment of status, it may create additional challenges for applicants with significant adverse factors.
Particular scrutiny may be directed toward individuals who have:
- Violated their nonimmigrant status;
- Engaged in unauthorized employment;
- Accrued substantial periods of unlawful presence;
- Been involved in immigration fraud or misrepresentation;
- Demonstrated repeated noncompliance with immigration laws;
- Relied heavily on public assistance where legally relevant;
- Entered as temporary visitors and shortly thereafter sought permanent residence without evidence of changed circumstances.
These applicants may need to present compelling evidence showing why favorable discretion should nevertheless be exercised.
What Has Not Changed?
At least for now, there has been no formal announcement eliminating adjustment of status for applicants who otherwise qualify under existing immigration laws.
Eligible applicants may still file Form I-485 when a visa number is available and statutory eligibility requirements are met.
Likewise, there has been no announcement eliminating adjustment eligibility for:
- Employment-based immigrants;
- Immediate relatives of U.S. citizens;
- Certain family-sponsored immigrants;
- Diversity Visa applicants who qualify;
- Other categories expressly authorized by Congress.
Most importantly, dual-intent visa categories such as H-1B, L-1, and O-1 remain recognized under current law.
High-Skilled Workers May See Little Noticeable Impact:
One of the most important clarifications emerging after the memo is that highly skilled professionals and law-abiding applicants are not expected to experience a significant change in their ability to obtain permanent residence.
Applicants who have:
- Maintained lawful status;
- Complied with visa requirements;
- Paid taxes;
- Avoided immigration violations;
- Maintained valid employment authorization;
- Built strong family and community ties;
continue to possess favorable discretionary factors that historically support approval.
This is particularly reassuring for many H-1B professionals, L-1 multinational managers and executives, O-1 individuals of extraordinary ability, physicians, researchers, engineers, scientists, and other highly skilled workers pursuing employment-based permanent residence.
Practical Impact:
The practical impact of the memorandum remains uncertain and will likely become clearer as USCIS officers begin applying the policy in actual adjudications.
For now, adjustment applications continue to be accepted and processed.
However, applicants should expect USCIS officers to examine discretionary factors more closely than in the past.
Cases involving immigration violations, unauthorized employment, fraud concerns, criminal history, or other adverse factors may face increased scrutiny.
Conversely, applicants with strong equities—including long-term residence in the United States, stable employment, tax compliance, family ties, community involvement, and good moral character—may continue to receive favorable consideration.
The Bottom Line:
The May 22, 2026 USCIS policy memorandum created understandable concern because of its strong language describing adjustment of status as an “extraordinary” form of relief and emphasizing consular processing as the preferred pathway for many intending immigrants.
However, subsequent DHS and USCIS statements suggest that the agency is not dismantling the adjustment process or automatically requiring eligible applicants to leave the United States.
Instead, USCIS appears to be signaling a return to a more rigorous discretionary review process, particularly for applicants with immigration violations or other negative factors.
For highly skilled workers, multinational executives, professionals, investors, family-based applicants with strong equities, and others who have complied with U.S. immigration laws, the practical impact may be far less dramatic than initially feared.
Until additional guidance, regulations, or court decisions provide further clarity, applicants should continue preparing adjustment of status cases carefully and present strong evidence demonstrating why discretion should be exercised favorably.
For now, adjustment of status remains available—but applicants should be prepared to show not only that they qualify under the law but also that they merit a favorable exercise of discretion.
Using Experience Gained with the Same Employer in a Perm Labor Certification Case
One of the most common questions employers ask during the PERM labor certification process is whether they may use experience that the foreign national gained while working for the sponsoring employer to qualify for the PERM position.
The answer is sometimes yes, but only under limited circumstances.
Under Department of Labor (DOL) regulations, an employer generally may not require experience that the foreign worker gained while working for the sponsoring employer if that experience was acquired in a position that is substantially comparable to the PERM position.
The purpose of this rule is to prevent employers from tailoring job requirements to the foreign worker's background in a way that would unfairly exclude qualified U.S. workers.
What Is a “Substantially Comparable” Position?
A position is considered substantially comparable if the job duties are more than 50% the same as the duties of the PERM position.
For example, if an employee works as a software developer and the employer later files a PERM application for a senior software developer position, the DOL may examine whether the employee gained the required experience while performing substantially the same duties for the same employer.
If more than 50% of the duties overlap, the DOL may determine that the employee cannot use that experience to qualify for the PERM position.
When Can Same-Employer Experience Be Used?
Experience gained with the sponsoring employer may still be used if:
- The experience was gained in a position that was not substantially comparable to the PERM position;
- The employee worked in a genuinely different role with materially different duties;
- The employee obtained additional skills, education, certifications, or responsibilities that transformed the nature of the position;
- The employer can clearly document organizational changes, promotions, or progression into a more advanced position.
For example, an employee who initially worked as a junior programmer and later advanced to an IT Project Manager may be able to use the earlier experience because the positions involve significantly different duties and responsibilities.
Importance of Accurate Job Descriptions:
Employers should carefully prepare job descriptions for both the PERM position and the employee's prior positions.
The DOL frequently scrutinizes:
- Percentage of time spent on each duty;
- Organizational charts;
- Reporting relationships;
- Technical skills required;
- Supervisory responsibilities;
- Educational requirements;
- Business necessity documentation.
A poorly drafted job description can result in an audit, denial, or lengthy requests for additional evidence.
The Kellogg Language:
In certain cases, employers may include alternative requirements in the PERM application under the principles established in Matter of Kellogg Brown & Root. However, these cases require careful drafting and detailed legal analysis to ensure compliance with DOL regulations.
Employers should avoid assuming that alternative requirements automatically solve same-employer experience issues.
Documentation Is Critical
When same-employer experience is involved, employers should maintain the following:
- Detailed experience letters;
- Promotion records;
- Organizational charts;
- Performance evaluations;
- Payroll records;
- Job descriptions for each position held;
- Evidence showing differences between the prior and PERM positions.
Proper documentation can be critical if the case is selected for audit.
The Bottom Line
Using experience gained with the same employer in a PERM case is possible, but only when the prior position is not substantially comparable to the PERM position or when a valid exception applies. Because DOL carefully reviews these cases, employers should analyze job duties, organizational structure, and experience requirements before beginning the PERM process.
A thorough review at the beginning of the case can help avoid costly delays, audits, and denials later in the green card process.
Before filing any PERM case, compare the beneficiary's prior position and the PERM position duty-by-duty. If more than 50% of the duties overlap, additional legal analysis is needed before relying on same-employer experience to meet the minimum requirements.
How to Build a Bulletproof EB-1A Case: Think Beyond the Ten Criteria
The EB-1A Extraordinary Ability category remains one of the most attractive pathways to permanent residence because it does not require a job offer, labor certification, or employer sponsorship. However, many applicants and even some attorneys mistakenly focus only on satisfying three or more of the ten regulatory criteria without adequately preparing for the most important part of the case—the final merits determination.
In reality, a successful EB-1A case requires much more than checking boxes.
The Two-Step Analysis:
USCIS evaluates EB-1A petitions using a two-step process.
First, the applicant must demonstrate that he or she satisfies at least three of the ten regulatory criteria unless the applicant has received a one-time major internationally recognized award.
Second, USCIS conducts a Final Merits Determination to decide whether the evidence, taken as a whole, establishes that the applicant has risen to the very top of the field and has sustained national or international acclaim.
Many petitions pass the first step but fail the second.
For this reason, I generally advise clients to build a case capable of meeting at least five strong criteria while simultaneously preparing evidence that clearly satisfies the Final Merits Analysis.
The Lowest Hanging Fruits
In many professional cases, the easiest criteria to satisfy are:
- Original Contributions of Major Significance;
- Leading or Critical Role for Distinguished Organizations;
- High Salary or High Remuneration Compared to Others in the Field.
These criteria are often available to senior managers, executives, engineers, scientists, physicians, researchers, software architects, data scientists, and business leaders.
For example, a technology executive may demonstrate:
- Original contributions through innovative products or systems;
- Leading role through executive responsibilities;
- High remuneration through compensation records.
While these criteria are valuable, relying exclusively on them can create a weaker case because USCIS frequently sees such evidence.
The Strongest Evidence Categories
The most persuasive EB-1A petitions often contain evidence from the following categories:
Awards and Prizes
National or international awards remain among the strongest forms of evidence because they demonstrate recognition by independent experts.
USCIS generally gives substantial weight to awards that are competitive, selective, and recognized within the field.
Published Material About the Applicant
Independent media coverage is often extremely persuasive.
Articles discussing the applicant's accomplishments demonstrate that others consider the work important and newsworthy.
Professional journals, trade publications, industry magazines, major newspapers, and recognized media outlets can all be valuable.
Judging the Work of Others
Serving as a judge, reviewer, peer reviewer, panelist, examiner, conference evaluator, dissertation reviewer, grant reviewer, or competition judge can be powerful evidence.
This criterion directly demonstrates that the applicant possesses expertise recognized by others in the field.
Patents and Intellectual Property
Patents by themselves do not automatically establish extraordinary ability.
However, patents that have been implemented, commercialized, licensed, cited, or widely adopted can significantly strengthen a petition.
The key is demonstrating impact rather than merely ownership.
Original Contributions Remain Critical
Perhaps the most important criterion in modern EB-1A practice is Original Contributions of Major Significance.
USCIS wants evidence showing that the applicant's work has influenced the field, industry, profession, organization, or scientific discipline.
Helpful evidence includes:
- Industry adoption;
- Independent recommendation letters;
- Citation records;
- Commercial success;
- Revenue impact;
- Operational improvements;
- Government use;
- Academic influence;
- Professional recognition.
A contribution is not extraordinary merely because it exists. It must be significant.
Leading and Critical Roles:
Many applicants underestimate the value of this criterion.
The issue is not simply whether the applicant held a leadership title.
The question is whether the applicant performed a leading or critical role for an organization that itself possesses a distinguished reputation.
Strong evidence includes:
- Organizational charts;
- Executive appointment letters;
- Evidence of decision-making authority;
- Revenue or operational impact;
- Letters from senior executives;
- Documentation showing the importance of the applicant's work.
Final Merits Analysis Is Everything
The strongest EB-1A cases are built backward from the final merits analysis.
When USCIS reviews the entire record, the officer should be able to conclude:
- This person is among the small percentage who have risen to the top of the field;
- The accomplishments are recognized nationally or internationally;
- The acclaim is sustained over time;
- The evidence comes from independent sources;
- The impact is significant and measurable.
Simply accumulating documents is not enough.
Every piece of evidence should contribute to a clear narrative demonstrating extraordinary ability.
Choose Your Attorney Carefully
EB-1A petitions often involve hundreds or even thousands of pages of evidence.
The quality of legal strategy can significantly affect the outcome.
Before signing a retainer agreement, applicants should:
- Ask how many EB-1A cases the attorney has handled;
- Request examples of successful cases similar to their profession;
- Discuss potential weaknesses in the case;
- Ask how the attorney plans to satisfy the Final Merits Analysis;
- Understand the evidence collection strategy before filing.
The best attorneys do not merely collect documents—they build a compelling legal story explaining why the applicant belongs among the top professionals in the field.
The Bottom Line
A truly strong EB-1A petition is not built around the minimum three criteria. It is built around a convincing Final Merits presentation supported by multiple strong criteria.
In many cases, applicants should strive to satisfy at least five well-documented criteria, with particular emphasis on:
- Original Contributions of Major Significance;
- Leading or Critical Role;
- High Remuneration;
- Awards and Prizes;
- Published Material;
- Judging the Work of Others;
- Patents and Intellectual Property.
The goal is not simply to meet the regulatory requirements. The goal is to present overwhelming evidence that the applicant has achieved sustained national or international acclaim and belongs among the small percentage at the very top of the profession.
When that story is told effectively and supported by credible evidence, an EB-1A petition becomes far more difficult for USCIS to deny.
America's Greatest Import: The Immigrant Engine That Powers U.S. Innovation
From entry-level H-1B professionals to tech visionaries who became citizens — how foreign-born talent built the American dream and continues to fuel the world's most powerful economy
There is a story that runs quietly beneath the surface of American greatness — told not in textbooks, but in the classrooms of Midwestern universities, the server farms of Silicon Valley, the hospital wards of rural America, and the innovation labs of the nation's greatest research institutions. It is the story of the immigrant: arriving with a suitcase, a skill set, and a singular belief that the United States of America is a place where talent is rewarded regardless of birthplace.
From the freshly minted H-1B engineer debugging code in a Sunnyvale startup at midnight, to the naturalized citizen who rose to lead a trillion-dollar technology company — H-1B visa holders and their descendants have been among the most consequential contributors to American prosperity in the modern era. This article celebrates that legacy — and makes the economic case for why the United States must continue to welcome the world's best and brightest.
The H-1B Visa: How America Recruits the World's Best Minds:
Created under the Immigration Act of 1990, the H-1B nonimmigrant visa was designed to allow U.S. employers to temporarily employ foreign nationals in specialty occupations requiring at least a bachelor's degree or equivalent — fields like engineering, computer science, finance, medicine, architecture, and law. What Congress could not have fully anticipated was how profoundly this single visa category would reshape the American economy over the following three decades.
The H-1B became the primary gateway through which America attracted the global intellectual elite. Engineers from India and China, scientists from South Korea and Iran, finance professionals from Europe and South America — all arrived on H-1B visas, worked in American companies, paid American taxes, bought American homes, and in many cases became American citizens. The visa cap of 65,000 per year (plus 20,000 for U.S. master's degree holders) has been oversubscribed by a factor of three to five in most recent years, a testament to how much the world's most talented professionals want to build their careers in the United States.
The H-1B worker is not a temporary guest. For most, it is the first step on a decade-long journey toward permanent residence and citizenship. They arrive as engineers and scientists; they stay as entrepreneurs, executives, professors, and civic leaders. They pay into Social Security and Medicare throughout their working years, often long before they are eligible to collect any benefits. They buy houses, raise children in American schools, start companies, and give back to the communities that gave them their start. The H-1B visa, at its best, is not just an immigration benefit — it is America's most powerful talent acquisition strategy.
Science, Medicine, and the Classroom: International Minds Educating America:
Walk into any research university in the United States — MIT, Stanford, Caltech, Johns Hopkins, the University of Michigan — and count the names on the faculty directory. You will find professors from India, China, South Korea, Iran, Nigeria, and nearly every nation on earth. These are not incidental additions to the American academic enterprise. They are its engine.
International scientists and scholars have won a disproportionate share of America's Nobel Prizes, founded its most transformative research labs, and trained generations of domestic students who would go on to lead American industry. The National Institutes of Health, NASA, and the National Science Foundation all depend on a pipeline of foreign-born researchers who arrived first on student or exchange visas, transitioned to H-1B status, and in many cases became permanent residents and citizens.
In medicine, the contribution is even more acute. Roughly 25% of all physicians practicing in the United States today are foreign-born. In rural and underserved communities — places that would otherwise have no doctor at all — that percentage rises dramatically. The J-1 and H-1B visa programs have been the primary pathways for these physicians, many of whom bring specializations and expertise that fill critical shortages in oncology, neurology, and primary care.
The Indian Techie and Silicon Valley: A Civilization-Level Contribution:
No story of immigration and American innovation can be told without speaking plainly about the extraordinary contribution of Indian technology professionals. Beginning in the 1980s and accelerating through the 1990s with the H-1B visa program, engineers, computer scientists, and software developers from India began arriving in the United States in large numbers — drawn by the boom of Silicon Valley, the explosion of enterprise software, and the American university system that had already trained many of them at the graduate level.
What they built is staggering. Today, Indian-Americans lead some of the most consequential technology companies in the world. Sundar Pichai, a native of Tamil Nadu who came to the United States on a student visa, became CEO of Google and its parent company Alphabet. Satya Nadella, raised in Hyderabad, transformed Microsoft from a declining giant into a cloud computing juggernaut and AI pioneer — its market capitalization soaring past $3 trillion under his leadership. Shantanu Narayen leads Adobe. Arvind Krishna runs IBM. Sanjay Mehrotra is CEO of Micron Technology, a semiconductor company at the heart of America's national security chip strategy.
But the contribution of Indian techies is not only at the CEO level. Walk through any major IT services firm, any cloud engineering team at Amazon Web Services, any data science department at a Fortune 500 company, and you will find Indian-American talent at every layer — writing the code, architecting the systems, managing the products, and training the next generation. Companies like Infosys, Wipro, TCS, and HCL brought their own talent pools to the United States through the L-1 and H-1B programs, establishing the offshore-onshore delivery model that powered the global IT services revolution.
Culture as Commerce: India's Soft Power in American Life:
The Indian presence in America is not only economic. It is cultural, culinary, spiritual, and philosophical. Indian cuisine — from the dosa houses of Jackson Heights, Queens to the upscale Indian restaurants of San Francisco's Hayes Valley — has become part of the mainstream American food landscape. Yoga, once a niche practice, is now a $37 billion industry in the United States, with millions of Americans practicing techniques rooted in Indian tradition daily.
Diwali, the Hindu festival of lights, is now celebrated in public spaces across American cities — including at the White House. Indian classical music, Bollywood film, and Indian fashion design have found audiences far beyond the diaspora. This cultural richness enhances American pluralism and soft power abroad, reinforcing the nation's image as a welcoming destination for the world's talent.
The AI Revolution: Why Indian Techies Are at the Frontier:
The United States did not become the global leader in artificial intelligence by accident. It got there because it attracted — and retained — the world's best mathematicians, statisticians, and computer scientists. A disproportionate share of the researchers behind the transformer architecture that powers modern large language models, the reinforcement learning breakthroughs that gave rise to ChatGPT, and the GPU computing advances that made modern AI feasible are immigrants or the children of immigrants.
Indian-American researchers lead AI teams at Google DeepMind, OpenAI, Meta AI, and Microsoft Research. Demis Hassabis co-founded DeepMind in the UK, but its American operations and much of its talent base draw heavily from the international pipeline. At Anthropic, at Mistral, at Cohere — the pattern repeats. The AI revolution is being built by a globally diverse workforce that the H-1B program, whatever its imperfections, made possible.
As China, the European Union, Canada, and the United Kingdom actively recruit the same talent pool with streamlined visa programs, the United States must recognize that its leadership in AI is not guaranteed. It is contingent on maintaining a legal immigration system that continues to welcome, retain, and naturalize the brilliant minds who choose America.
The Numbers Don't Lie: Tax Revenue, Consumption, and Economic Output:
The economic case for legal immigration is overwhelming, and it operates on multiple levels simultaneously:
- Federal and State Tax Revenue: H-1B workers — who are employed in high-skilled, high-wage positions — are among the most productive taxpayers in the American system. The median H-1B wage across all occupations exceeds $110,000 annually, generating substantial federal and state income tax receipts. Indian-American households, with a median income of approximately $135,000 (the highest of any ethnic group in the United States), collectively contribute tens of billions in income taxes annually.
- Social Security and Medicare: Temporary visa holders pay into Social Security and Medicare throughout their working years in the United States. Most will never collect these benefits, either because they return to their home countries or because their immigration status never converts. This represents a massive implicit subsidy to the American entitlement system — estimated in the hundreds of billions over the past three decades.
- Consumer Spending and Housing: Immigrants consume. They buy houses, cars, groceries, and electronics. They send their children to public schools, pay property taxes, and patronize local businesses. A typical H-1B worker living in a major metropolitan area may inject $80,000 to $120,000 annually into the local economy through rent, food, transportation, and discretionary spending.
- Entrepreneurship and Job Creation: According to research from the National Foundation for American Policy, immigrants have founded more than 40% of Fortune 500 companies, which collectively employ millions of Americans. Among tech startups valued at more than $1 billion — so-called unicorns — more than half were founded or co-founded by immigrants. Every immigrant-founded company that hires American workers is, by definition, a net creator of domestic employment.
- Patent Filings and Innovation: Immigrants are dramatically overrepresented in U.S. patent filings relative to their share of the population. Studies by the National Bureau of Economic Research show that immigrants account for roughly 30% of U.S. inventors despite comprising approximately 14% of the overall population. In technology-intensive fields, that percentage is even higher. Innovation drives productivity growth; productivity growth drives wage increases for all American workers.
- Healthcare and STEM Pipeline: Foreign-born physicians, nurses, and healthcare workers deliver an estimated $60 billion in annual healthcare services in the United States, concentrated disproportionately in rural and underserved areas. Without this workforce, millions of Americans in low-density states would lack access to basic medical care. In STEM education, international graduate students — many on F-1 visas who later transition to H-1B — fill critical gaps in doctoral programs in engineering, computer science, and the physical sciences.
A Policy Imperative: Protect the Pipeline:
The evidence is unambiguous: legal immigrants — on H-1B, L-1, O-1, EB-1, and EB-5 visas, and ultimately as naturalized citizens — are among the most economically productive people in the United States. They pay more in taxes per capita than native-born citizens. They are less likely to commit crimes. They start businesses at higher rates. They file patents, win Nobel Prizes, build hospitals, and found the companies that their adopted country would list among its proudest achievements.
The story of the Indian techie who came to America on an H-1B visa, worked his way through a decade of immigration bureaucracy, and one day stood before his employees as CEO of a trillion-dollar company is not an exception to the American story. It is the American story — updated for the 21st century, rendered in different accents, but animated by the same hunger, the same work ethic, and the same faith in what this country can be.
As immigration attorneys, we see this story every day — in every RFE we respond to, every petition we file, every family we reunite, every entrepreneur we help build a business here. The immigration system is imperfect, backlogged, and frequently frustrating. But the people moving through it? They are extraordinary. And America is better for every one of them who chooses to stay.
Adjustment of Status After the May 22 Memo: USCIS Provides Policy Clarification
The immigration community was surprised on May 22, 2026, when U.S. Citizenship and Immigration Services (USCIS) issued Policy Memorandum PM-602-0199 and an accompanying press release stating that adjustment of status (AOS) is an “extraordinary” form of relief and that foreign nationals should generally pursue immigrant visas through consular processing abroad rather than seek permanent residence from within the United States.
The press release generated significant concern among employers, foreign workers, students, and family-based immigrants because it appeared to suggest that USCIS would severely restrict approval of Form I-485 Adjustment of Status applications and require many applicants to leave the United States for immigrant visa processing.
According to the May 22 announcement, USCIS officers are instructed to exercise discretion and evaluate whether an applicant merits adjustment of status as an “extraordinary” benefit rather than treating adjustment as a routine process. The agency emphasized that adjustment of status is not an entitlement and that officers must weigh all favorable and unfavorable factors before granting permanent residence.
However, within days of the announcement, USCIS officials and agency spokespersons indicated that the policy may not be as dramatic as many initially feared. Several immigration stakeholders reported receiving clarification that the memo primarily reiterates the long-standing statutory requirement that adjustment of status is a discretionary benefit under INA §245 and does not automatically change eligibility requirements for filing Form I-485.
EB-5 Rural Projects: Faster Green Cards, But Not Necessarily Safer Investments
The Rural EB-5 category has become extremely popular because it offers reserved visa numbers and potential priority processing. However, a faster immigration path does not eliminate investment risk. Investors should conduct extensive due diligence before investing $800,000 and placing their family's immigration future at stake.
Below are 25 questions every EB-5 investor should ask before signing subscription documents or wiring investment funds.
Regional Center Due Diligence
- How long has the regional center been operating?
- How many I-526E petitions have been approved?
- How many investors have received I-829 approvals?
- Has the regional center ever been terminated, sanctioned, or investigated?
- Has the regional center complied with all annual Integrity Act reporting requirements?
Developer Due Diligence
- Who is the developer?
- What projects has the developer completed in the past?
- Has the developer ever filed bankruptcy?
- Has the developer been involved in investor lawsuits?
- How much of the developer's own money is invested in the project?
Financial Due Diligence
- What percentage of the project is funded through EB-5 capital?
- Is there senior bank financing?
- What collateral secures the EB-5 investment?
- What happens if construction costs increase?
- Is there a completion guarantee?
Job Creation Due Diligence
- How many jobs are projected?
- How many jobs are actually required?
- What is the job creation cushion?
- Who prepared the economic impact report?
- What assumptions were used to calculate job creation?
Immigration Due Diligence
- Does the project qualify as a rural project under current USCIS rules?
- Has immigration counsel reviewed the project documents?
- Are there any prior USCIS Requests for Evidence involving the project?
- Is concurrent filing available for investors already in the United States?
- What is the projected timeline for I-526E, conditional residence, and I-829 approval?
Major Red Flags Investors Should Never Ignore:
Red Flag #1: Guaranteed Green Card Promises
No attorney, regional center, developer, consultant, or migration agent can guarantee an EB-5 approval.
Any person making such promises should be viewed with extreme caution.
Red Flag #2: Guaranteed Return of Investment
Federal securities laws generally prohibit guaranteed returns in EB-5 investments.
If someone promises that your money is “100% safe” or “guaranteed,” proceed carefully.
Red Flag #3: New Developer with No Track Record
Many rural projects involve first-time developers who have never completed a project of similar size.
A lack of experience increases both financial and immigration risk.+
Red Flag #4: Minimal Job Cushion
Projects creating only slightly more jobs than required leave little margin for error.
Construction delays, budget reductions, or revenue shortfalls can negatively impact job creation.
Red Flag #5: Heavy Reliance on Future Revenue
Projects dependent upon future occupancy, future customers, or speculative revenues are inherently riskier.
Red Flag #6: Weak Exit Strategy
Investors should understand exactly how repayment is expected to occur.
If management cannot clearly explain the exit strategy, caution is warranted.
Red Flag #7: Excessive Administrative Fees
Some projects charge administrative fees that appear excessive relative to market standards.
Investors should understand every fee being charged.
Special Concerns for Rural Hotel Projects:
Hotel projects are among the most common rural EB-5 offerings.
Investors should analyze:
- Brand affiliation;
- Management experience;
- Occupancy projections;
- Competition within the area;
- Tourism trends;
- Construction budget assumptions.
Many hotel projects succeed, but unrealistic occupancy assumptions can create significant risk.
Special Concerns for Rural Senior Living Facilities:
Senior living projects often rely on:
- Future resident occupancy;
- Medicare and Medicaid reimbursement assumptions;
- Long-term operating expenses.
Investors should carefully review demographic studies and market demand reports.
Special Concerns for Manufacturing Projects:
Manufacturing projects may offer strong job creation but require examination of:
- Customer contracts;
- Supply chain stability;
- Regulatory approvals;
- Labor availability;
- Long-term demand for products.
Source of Funds: The Most Overlooked Risk:
Many investors focus entirely on selecting the right project while neglecting source-of-funds analysis.
Before investing, investors should assemble:
Employment Income:
- Tax returns
- Salary records
- Bank statements
- Employment verification letters
Business Income:
- Corporate tax returns
- Shareholder records
- Audited financial statements
Property Sales:
- Purchase agreements
- Sale contracts
- Closing documents
- Proof of receipt of proceeds
Gifts:
- Gift deed
- Donor financial records
- Donor tax records
- Proof of transfer
Loans:
- Loan agreements
- Security documents
- Evidence of disbursement
- Repayment records
USCIS often asks not only where the money came from, but where the money came from before that.
The more complex the source of funds, the more important it becomes to perform a complete legal review before investing.
Final Thoughts
The most successful EB-5 investors begin their due diligence before selecting a project and before transferring funds. A carefully vetted rural project combined with a thoroughly documented source of funds can dramatically improve the likelihood of approval and reduce the risk of investment loss.
The best time to identify problems is before the money leaves your account—not after USCIS issues a Request for Evidence or a Notice of Intent to Deny.
Sincerely,
Keshab Raj Seadie, Esq.
Law Offices of Keshab Raj Seadie, P.C.
Disclaimer: This newsletter is intended for informational purposes only and does not constitute legal advice. Always consult an attorney for personalized advice.
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