A recent Supreme Court ruling has significantly affected the reentry rights of green card holders with criminal records or pending charges — including EB-5 investors — when returning to the United States.
On June 23, 2026, the Supreme Court issued a major 6-3 decision in Blanche v. Lau, authored by Justice Clarence Thomas. The ruling makes it easier for the government to channel returning green card holders with criminal histories into the more difficult inadmissibility track, where they can be paroled into the country, detained, or placed in removal proceedings in which the burden of proof falls on the individual rather than on the government.
The case involved Muk Choi Lau, a Chinese citizen who became a lawful permanent resident in 2007. While a New Jersey trademark counterfeiting charge was pending against him, he briefly traveled to China. When he returned to JFK International Airport, a border officer paroled him rather than admitted him, based on the pending charge.
“The decision increases the risk analysis for any permanent resident with a criminal history,” Bernard Wolfsdorf of WR Immigration said. “Even where an arrest was resolved favorably, returning from international travel will now invite greater CBP scrutiny.”
What the ruling means for U.S. green card holders
As a rule, a green card holder returning from a trip abroad is treated as already admitted to the United States and is not regarded as “seeking admission.” The law lists six narrow exceptions.
The Supreme Court’s ruling clarified that the border classification and the ultimate removal hearing are two separate steps: U.S. Customs and Border Protection (CBP) officers are not required to possess clear and convincing evidence of a disqualifying offense now of reentry, but the government must still establish a conviction or admission to the offense to prove inadmissibility at a removal hearing.
The practical consequences of reclassification are significant. It determines which removal track applies, and the two tracks differ significantly. If a returning resident is treated as already admitted, the government may pursue removal only on deportability grounds, where the government carries the burden of proof. If, instead, the resident is treated as seeking admission, the government proceeds on inadmissibility grounds, shifting the burden to the individual to prove admissibility.
However, Wolfsdorf clarifies that reclassification does not mean the individual loses permanent residency status. “It means DHS may treat certain returning green card holders as applicants for admission, placing the burden on the government to pursue inadmissibility or removal proceedings rather than simply admitting them as returning residents.”
It’s important to note the scope of the ruling. The decision does not mean every arrest makes a green card holder inadmissible. The decision also does not affect other exceptions under the Immigration and Nationality Act (INA), such as abandonment of lawful permanent resident status, absence from the United States for more than 180 days, or departure while removal proceedings were pending. The Supreme Court ruling does not turn every traffic ticket or minor accusation into a green-card crisis. But it does make clear that returning lawful permanent residents with certain criminal issues can face tougher treatment at the U.S. border.
Wolsdorf cautions U.S. green card holders to assess their situation before traveling. “My advice is don’t board the plane until an experienced immigration attorney has reviewed the criminal disposition. Even minor arrests can present unexpected immigration issues at the port of entry. A pre-travel legal review is far less onerous than being detained or placed into removal proceedings after landing.”
Implications for EB-5 investors with a criminal history
For EB-5 investors who have received their green cards and have a criminal record or pending charges, any international travel carries heightened risk. Pending criminal charges involving a possible crime of moral turpitude represent the highest-risk scenario under Blanche v. Lau.
A pending charge can create risk of secondary inspection and scrutiny at reentry, and under the Court’s holding, the government can satisfy its evidentiary burden at a later removal hearing rather than at the border.
Prior convictions for offenses that may qualify as crimes of moral turpitude — including many fraud offenses, theft with intent to deprive, and offenses involving intentional harm or deception — also carry elevated risk. The analysis is highly fact-specific; a minor sentence or no jail time does not necessarily mean the offense falls outside this category.
If there is any arrest, pending charge, plea, conviction, probation issue, DUI, drug case, fraud case, theft case, or false-document issue, immigration-law advice should come before any international travel.
The same considerations apply to EB-5 investors with a criminal history who are still awaiting their green cards. Even if a criminal matter was resolved or appears minor, it could still affect the application process and any future reentry into the United States. Consulting qualified immigration counsel before traveling internationally is essential.
“Nothing in this decision changes the statutory admissibility requirements for EB-5 applicants,” Wolfsdorf says. “However, applicants with pending charges, convictions, or even complex arrest histories should expect heightened scrutiny and should resolve immigration consequences well before filing or before leaving the United States.”
As to the United States Citizenship and Immigration Services (USCIS) reviewing how it assesses criminal disclosures during the initial I-526E or I-485 application stages, Wolfsdorf does not expect a fundamental change in the process.
“USCIS has always conducted a comprehensive admissibility review and required full disclosure of criminal history.”
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
