The American Immigration Lawyers Association (AILA) is concerned that if the U.S. Citizenship and Immigration Services (USCIS) doesn’t move quickly, many reserved EB-5 visas could go unused.
They have requested that USCIS prioritize the review of pending adjustment of status (AOS) applications based on approved Forms I-526E before the “grandfathering” deadline of September 30, 2026. This cutoff date allows applicants to submit an EB-5 petition to USCIS in order to lock in their current investment requirements before the program ends in 2027.
In a letter sent to USCIS on May 21, AILA made several recommendations to improve the efficiency and fairness of the EB-5 program.
“AILA sent the letter to USCIS to encourage USCIS to process as many AOS applications as possible because we are nearing the end of the fiscal year on September 30, 2026,” said Jennifer Hermansky, the EB-5 Committee chair for AILA and EB-5 shareholder at Greenberg Traurig, LLP.
The EB-5 program allows eligible foreign investors to obtain U.S. permanent residency (Green Card) by investing a minimum amount in a new commercial enterprise that creates or preserves at least 10 jobs for U.S. workers. The program aims to stimulate the U.S. economy through foreign capital investment.
What are AILA’s recommendations to USCIS?
“We are encouraging USCIS to process the pending AOS applications with approved I-526E petitions to minimize reserved visa waste for the fiscal year”, Hermansky said.
Their main recommendations to USCIS are:
1. Prioritize AOS Applications: Encourage USCIS to expedite the processing of all pending AOS applications based on approved Forms I-526E to minimize the waste of reserved EB-5 visas.
2. Redirect Resources: Urge USCIS to allocate resources effectively to ensure that all pending Forms I-485 for EB-5 petitions are processed promptly.
3. Allow Visa Choice: Permit EB-5 petitioners to choose between reserved and unreserved visa categories during the AOS stage, streamlining the process and enhancing fairness.
4. Revamp Case Status System: Recommend the improvement of USCIS’s case-status system, ensuring that petitioners are informed about changes related to their regional centers.
5. **Enhance Communication: Establish a robust communication channel between USCIS and stakeholders in the EB-5 program to facilitate discussions and address concerns.
AILA sent the letter a day before a USCIS memorandum that, for a moment, marked a significant shift in the EB-5 immigration landscape. Initially, the U.S. immigration agency said that all foreigners must return to their countries to apply for AOS, except in “extraordinary circumstances,” which have yet to be clarified. Later that week, the Department of Homeland Security (DHS) and the agency clarified that the initial announcement about the adjustment of status was not a blanket mandate but a reminder to immigration officers of their authority to exercise discretion when reviewing individual cases.
“The timing was coincidental to the USCIS memorandum issued on May 22; that memorandum limiting AOS applications was not previously announced and is a new policy from USCIS,” Hermansky concluded.
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