Recent immigration enforcement actions conducted by the Department of Homeland Security (DHS) and United States Citizenship and Immigration Services (USCIS) underscore a progressively stringent posture regarding periods of lawful status following the filing of an Adjustment of Status (AOS) application. This is particularly evident in circumstances where aggravating factors are present, or where USCIS suspects that the most recent entry was made with a preconceived intent to immigrate. Certain EB-5 investors have been subjected to removal proceedings subsequent to interviews or travel, including those who re-entered under advance parole (AP). In response to this evolving environment, legal practitioners representing EB-5 investors must undertake robust risk assessments, reinforce client screening procedures, and prepare clients for potentially contentious interactions with enforcement authorities—especially in cases involving parole entries under INA §212(d)(5), which may result in the designation of the entrant as an “arriving alien” and entail severe procedural consequences, such as mandatory detention by Immigration and Customs Enforcement (ICE).
In recent months, multiple EB-5 investors, including some with duly filed and pending AOS applications, have been subjected to removal actions, including detention, upon the identification of certain factors, which, while not exhaustive, include:
• Entry on AP without maintaining lawful nonimmigrant status
• Contact with law enforcement agencies, including cases subsequently dismissed or expunged
• Termination of H/L employer sponsorship and related notifications to USCIS or withdrawal of underlying NIV petitions
• Filing of AOS during an F-1 student’s grace period
• Termination of SEVIS status
• Overstays of B-visa validity
• Enrollment of children in public educational institutions while on B visa status
• Unauthorized employment, whether brief, undocumented, or otherwise
• Cancellation or revocation of visa status
• Documented pre-entry plans indicating intent to file AOS, such as lease agreements, school enrollments, job offers, or correspondence evidencing immigrant intent
Many EB-5 clients proceeding with AOS are re-entering the United States utilizing advance parole (AP) issued pursuant to INA §212(d)(5). On July 8, 2025, ICE issued interim guidance delineating its authority concerning detention of applicants seeking admission.
Consequently, EB-5 petitioners must be cognizant of the accompanying legal and enforcement risks, which include:
• Granting of parole permits entry into the United States without conferring a formal immigration status or constituting a deemed admission under immigration law. Although eligibility for adjustment exists, USCIS retains broad discretionary authority to deny parole based on equities, public interest considerations, or perceived abuse.
• Parolees are treated as applicants for admission, which may trigger adverse legal consequences, including:
o Determinations that parole renders the petitioner ineligible for bond from an immigration judge, and, if inadmissibility is alleged, subject to mandatory detention
o Revocation of parole by DHS if misrepresentation or fraud is suspected
Furthermore, individuals who remain in the United States with a pending adjustment application after the expiration of their nonimmigrant status are, in law, considered to be in an unlawful status, notwithstanding the absence of unlawful presence accumulation. As a matter of prosecutorial discretion, DHS may permit such individuals to remain in the country pending final adjudication of their adjustment application, provided that the application effectively suspends unlawful presence accrual. This condition may be interpreted as the alien’s presence being “authorized.” However, it is critical to recognize that the absence of unlawful presence does not necessarily render the alien’s stay lawful under immigration laws. For detailed guidance, see Adjudicators Field Manual, §40.9.2, “Inadmissibility Based on Prior Unlawful Presence,” and AILA Document No. 25080804 (posted August 8, 2025).
III. Critical Examination of Nonimmigrant Visa Entry and Preconceived Intent to Adjust Special caution is warranted for EB-5 applicants who enter the United States on a B visa or other nonimmigrant visa with a pre-existing intent to adjust status. Indicators of potential issues include:
• Signing lease agreements or enrolling children in educational institutions prior to entry
• Establishing bank or utility accounts from abroad
• Communicating via email or other correspondence planning to file AOS immediately upon arrival
While adjustment of status from B-1/B-2 visas is legally permissible if immigrant intent is formed subsequent to entry, U.S. immigration authorities increasingly operate under the presumption that such intent exists pre-arrival. The 30/60/90-day rules provide non-binding guidance and are no longer regarded as safe harbors. USCIS is actively enforcing the petitioner’s burden of proof to demonstrate that no preconceived intent existed that could lead to a finding of fraud or material misrepresentation, thereby emphasizing the importance of establishing genuineness of intent post-entry.
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