The Trump administration has proposed a new policy called “Catch and Revoke,” which indicates a zero-tolerance approach toward legal infractions by foreign nationals residing in the United States.
Potential EB-5 investors should be aware of the proposed criteria, as they may hold different U.S. immigration statuses during their application process. Once their EB-5 petition is approved (I-526 form), they must adjust their U.S. status to a temporary visa (I-485 if they already reside in the U.S. or DS-260 form if they apply abroad), which will remain valid until they receive their green card (after their I-829 form is approved).
Catch and Revoke, which Secretary of State Marco Rubio announced on Apr. 30 in a DOS newsletter, enforces a “one strike” rule, meaning that foreign individuals holding a U.S. visa risk losing their immigration status for any violation of U.S. laws, regardless of the offense’s severity.
This policy arises in the context of the Trump administration’s strict immigration crackdown. It affects various categories of visitors and residents, including tourists, students, investors, and the spouses of legal permanent residents. As of now, the policy has not been approved, and the legal community is challenging it in court.
How could this policy affect EB-5 investors?
U.S. immigration lawyer Joseph Barnett from WR Immigration clarifies that this recent policy emphasizes the Trump administration’s aim to rigorously enforce current U.S. immigration regulations and to utilize the power of the State Department to revoke visas. Such choices usually cannot be reviewed by the courts due to the principle of consular non-reviewability.
WR Immigration also cautioned its clients in its blog that “global mobility teams should prepare for heightened scrutiny, increased RFEs, and potential disruptions to work authorization.” An RFE is a formal request for additional information or documentation from an applicant supporting their immigration application.
EB-5 lawyer Bobi Ahn from Ahn Law Group, LLC, clarifies that “for immigrant visa holders (like EB-5 investors) who may have already gone through the petition process and are either conditional permanent residents or permanent residents, they have already been ‘vetted’ through the biometrics process and background/criminal history check completed, so this new policy is not aimed specifically at them.”
However, she cautions that this new policy could affect concurrent filings by current H-1Bs or other U.S. visa holders who are in the process of switching to EB-5.
“These folks, they are dependent on their nonimmigrant status, and if there is an adverse criminal history or political activities in their records, USCIS/ICE [U.S. Immigration and Customs Enforcement] now can take action to revoke such nonimmigrant status,” Ahn said. “For those in H-1B status, it would require an additional step of issuing a Notice of Intent to Revoke, which gives the employers that are filing the petitions on behalf of the H-1B nonimmigrant workers an opportunity to respond, and for now, there is the safety of due process and legal procedure.”
Barnett adds: “Additionally, while the I-829 primarily focuses on whether the investor’s investment meets the EB-5 requirements, USCIS can still raise issues of inadmissibility and deportability that might affect the investor’s permanent residency status, including what the State Department is prioritizing with this new policy. However, revocation of a visa does not, by itself, impact a conditional permanent residence’s status in the United States; an additional step by DHS to remove the EB-5 investor would be required.”
What crimes could lead to the termination of a U.S. visa?
The State Department’s announcement did not detail the full range of crimes that could result in visa revocation.
However, recent enforcement actions have demonstrated that student visa holders can face termination of their visas for participating in protests or expressing certain viewpoints, even for minor infractions such as traffic violations. In late April, the administration reversed its decision to cancel the visas of hundreds of foreign students nationwide after these students and their supporters filed multiple court challenges.
The current policy emphasizes that holding a U.S. visa is a privilege, not a right, and underscores the importance of upholding U.S. laws and regulations while residing in the country.
U.S. immigration attorneys advise foreign nationals in the U.S. to be aware of this policy’s implications and adhere to U.S. laws to avoid the risk of visa revocation and potential deportation.
Deportation of U.S. immigrants
Similarly, the Trump administration has already deported individuals who allegedly had legal permission to remain in the U.S., including those with green cards, visas, or U.S. citizenship.
The administrations before President Trump also deported foreign students in the U.S., some of whom were in the country legally. Under Trump, immigration enforcement has intensified with the implementation of the “Student Criminal Alien Initiative,” leading to the deportation or detention of international students on various grounds, such as minor infractions, visa technicalities, or political activism.
These deportations underscore the Trump administration’s broader agenda of implementing stricter immigration regulations. A federal judge has ruled this process unlawful due to a lack of due process.
Additionally, on Apr. 11, the government instituted a registration requirement for immigrants who did not enter the U.S. with a visa. Upon arrival, these individuals must register with the federal government and carry proof of their registration. Failure to register or carry this proof may lead to criminal prosecution under federal law.
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