IIUSA Statement Regarding May 21, 2026 USCIS Policy Memorandum PM-602-0199
On May 22, 2026, U.S. Citizenship and Immigration Services (USCIS) released Policy Memorandum PM-602-0199, dated May 21, 2026 (Policy Memorandum), addressing the adjudication of adjustment-of-status (AOS) applications. The memorandum states:
Where consular processing is available to an alien based on the immigrant category in which he or she seeks adjustment of status, in determining whether the alien warrants a favorable exercise of discretion officers are to consider the consistent understanding of the courts and the BIA [Board of Immigration Appeals] that adjustment of status is an extraordinary discretionary relief to the regular immigrant visa process and is an act of administrative grace.
While the Policy Memorandum on its face does not alter the statutory eligibility requirements for adjustment of status under section 245(a) of the Immigration and Nationality Act (INA), the Policy Memorandum signals a potentially significant shift in how USCIS officers may exercise their discretion when adjudicating adjustment-of-status applications. By emphasizing adjustment as “extraordinary relief” and as an exception to the ordinary consular immigrant-visa process, the Policy Memorandum encourages adjudicators to treat adjustment more narrowly than it historically has been treated in practice.
This issue may be particularly significant in the EB-5 context. Congress enacted specific provisions governing adjustment eligibility for certain EB-5 investors, including INA §§ 245(n) and 245(k), which many EB-5 petitioners have relied upon in pursuing adjustment of status in the United States. Those provisions reflect Congress’s recognition that adjustment of status serves an important role in facilitating investment and economic activity. To the extent the new guidance results in substantially more restrictive adjudications, questions may arise regarding whether implementation of the memorandum is fully consistent with the broader statutory framework Congress established.
IIUSA is actively reviewing the Policy Memorandum, consulting with its members and legal counsel, and assessing what proactive measures may be appropriate in response to this guidance. At present, IIUSA anticipates focusing its efforts on three principal areas:
- Best practices for EB-5 petitioners: IIUSA believes that best practices will necessarily be driven on a case-by-case basis. As implementation of the Policy Memorandum develops, petitioners and practitioners may need to more carefully evaluate whether and when adjustment of status is appropriate, as well as what expectations should be set for the AOS adjudication’s success.
- Advocacy impacting implementation of this guidance: IIUSA is already actively engaged with and successfully educating policymakers on Capitol Hill regarding the incredibly positive impact of the EB-5 program on communities across the United States. Those efforts provide ample opportunities to educate policymakers regarding the negative impact of this Policy Memorandum, including possible chilling effects on continuing investment decisions and subsequent job creation.
- Potential litigation and legal challenges: IIUSA is closely evaluating potential legal questions raised by the Policy Memorandum and its implementation and resulting opportunities for litigation. Any litigation strategy, however, will necessarily depend on how the guidance is applied in practice, the legal theories that emerge, and whether broader coalitions develop among affected stakeholders.
IIUSA notes that the Policy Memorandum impacts an incredibly broad range of immigration stakeholders beyond the EB-5 community, and that it is not likely to be alone in this fight. Other immigration categories are also impacted by the Policy Memorandum, perhaps even more so, and it remains to be seen what coalition may develop in opposition to the Policy Memorandum. For example, employment-based immigrants and the institutions that rely on them—including employers, hospitals, universities, and others—may also be evaluating the impact of this guidance and will all likely have a stake in any litigation. What such a coalition looks like and what such coalition’s specific causes of action in court will be may impact IIUSA’s decision to join the coalition, file its own lawsuit, and otherwise oppose implementation of the guidance. As developments unfold, IIUSA will continue assessing whether and how to participate in broader efforts concerning implementation of the memorandum.
IIUSA remains committed to promoting and protecting the EB-5 program and the broader ecosystem it supports. We will continue assiduously championing and advocating for what is best for the entire EB-5 ecosystem and look forward to providing any updates as additional information and developments become available.
