Does “Immigrant Intent” Affect Adjusting to EB5 Status in the U.S. in 2026?

For many Vietnamese who are studying, working, or staying in the U.S. on nonimmigrant visas, adjusting to EB5 status right on U.S. soil is a short and convenient path toward a permanent green card. Yet a seemingly abstract legal concept — immigrant intent — can become the deciding factor in whether an applicant’s case is approved or denied. This issue has become more sensitive than ever, especially since U.S. Citizenship and Immigration Services (USCIS) issued a new policy memorandum in May 2026. The Newland USA article below takes a close look at the connection between immigrant intent and the process of adjusting to EB5 status in the U.S. in the context of the 2026 EB5 program, helping investors clearly picture the hidden risks and how to put together a truly solid application.

1. What “adjusting to EB5 status” is and why it became the top choice in 2026

Within the U.S. immigration system, adjusting to EB5 status (Adjustment of Status to the EB5 investor category) is the process by which a person who is already lawfully present in the U.S. on a temporary visa changes their residency status to become a permanent resident — without having to leave the United States. Instead of returning home and processing the case at a consulate (consular processing), the applicant files Form I-485 from inside U.S. territory.

The appeal of this route surged after the EB5 Reform and Integrity Act of 2022 (RIA) allowed for concurrent filing. Before the RIA took effect, an investor already in the U.S. had to wait for their I-526E petition to be approved before they could file to adjust status. The new mechanism reversed that: participants in the 2026 EB5 program can simultaneously file Form I-526E (the investor’s immigrant petition through a regional center), Form I-485 (adjustment of status), Form I-765 (work permit), and Form I-131 (advance parole / re-entry permit) all at the same time.

The practical benefits are clear. This mechanism lets investors receive a work permit and travel document in roughly 60 days, while also being allowed to reside legally in the U.S. throughout the entire time their EB5 case is under review. For those whose visas are about to expire, this is a lifeline that helps maintain continuous legal status. However, this convenience comes with a strict requirement for transparency about the applicant’s original intent — and that is precisely where the concept of immigrant intent comes into play.

2. “Immigrant intent” in U.S. immigration law: the core concept you need to master

At its core, immigrant intent is the desire to settle permanently in the U.S. That sounds simple, but within the immigration legal framework, this concept is tightly tied to the type of visa a person uses to enter the country.

The U.S. visa system is divided into two main groups based on this factor. The first group consists of visas that allow “dual intent” — meaning the holder may both stay temporarily and harbor plans to settle in the future without being considered in violation. Typical examples in this group are the H-1B (specialty occupation worker), L-1 (intracompany transfer), and O-1 (extraordinary ability) visas.

The second group consists of visas that accept only “single intent” — nonimmigrant intent. Applicants for these visas must prove that they are coming to the U.S. for a specific temporary purpose and intend to leave once that purpose is fulfilled. Typical categories include F-1 (international students), B-1/B-2 (tourism, short business trips), J-1 (exchange), E-2, and O-1A. For this group, if a person declares upon entry that they are only staying temporarily, then quickly files for a green card, the immigration authorities may ask: was the original declaration truthful?

This is the crux of the matter. When an individual adjusts to EB5 status from a visa that only permits temporary intent, they must convincingly explain why their plans changed after arriving in the U.S. An inconsistency between what was declared at entry and the act of filing for permanent residency can be interpreted as misrepresentation — a serious error that can lead to denial of the case, or even a permanent bar on entry.

3. The 90-day rule: the test of immigrant intent when adjusting to EB5 status

To assess an applicant’s truthfulness, immigration officials often invoke what is called the “90-day rule.” This is the most common tool officers use to weigh a person’s immigrant intent at the moment they entered the country.

The principle works like this: if a foreign national holding a nonimmigrant visa files to immigrate or adjust status — for example, filing an EB5 petition or Form I-485 — within 90 days of entry, immigration authorities may presume that the person already held the intent to settle from the moment they set foot in the U.S., even if they deny it. This presumption can trigger a range of consequences, from denial of the application to prolonged legal trouble.

The consequences of a violation can be very serious. According to experts’ analysis, someone who enters on a tourist or student visa with a preconceived plan to file for adjustment of status shortly afterward risks facing a permanent bar. For that reason, the consistent advice for investors is not to start the adjustment to EB5 status too early. Waiting at least 90 days, or providing clear evidence of new circumstances that prompted a change of plans, is worth considering before beginning the adjustment of status.

It is important to understand that the 90-day rule is not an absolute “shield.” Crossing the 90-day mark does not automatically erase all doubt; it merely eases the pressure of these presumptions. When an applicant can show that their intent to settle only formed after arriving in the U.S. — due to a reasonable change in circumstances — they have grounds to defend their case. This is why timing and keeping records of how one’s intent evolved play such an important role in any plan to adjust to EB5 status in the U.S.

4. The USCIS policy memorandum of May 2026 and its impact on adjusting to EB5 status in the U.S.

2026 marked a policy turning point that anyone interested in the 2026 EB5 program must pay attention to. On May 21, 2026, USCIS issued Policy Memorandum PM-602-0199, reaffirming that adjustment of status (Form I-485) is a discretionary immigration benefit rather than an automatic right of the applicant.

This document does not create new eligibility requirements, nor does it prohibit filing for adjustment of status. Instead, it restates the long-standing legal principle that USCIS officers have full authority to review — and may deny — a case even when the applicant meets all the requirements. The most notable point lies in the signal the memo sends: USCIS will apply a higher level of scrutiny to cases where an applicant’s conduct shows signs of conflicting with their original temporary purpose of entry, particularly for visa categories that do not allow dual intent.

Specifically, officers are instructed to weigh the entire case under a “totality of the circumstances” approach. They will consider factors such as: violations of immigration law or the conditions of one’s status; signs of fraud or misrepresentation; whether the entry complied with regulations; and any post-entry conduct that conflicts with the purpose of the nonimmigrant visa or with statements made before consular or border officers.

For EB5 investors who are adjusting to EB5 status from visas such as F-1, E-2, or O-1, what does this mean? An applicant adjusting status from the F-1 or E-2 category should now be prepared to face more questions about when the intent to settle formed, whether their nonimmigrant status was properly maintained, and whether consular processing might be the more reasonable option. The good news is that the route of adjusting to EB5 status in the U.S. has not been eliminated. Investors who carefully comply with the rules and can demonstrate “good faith” remain in a favorable position.

It is also worth noting that immigration attorneys predict this memo may face legal challenges. Some argue the document could conflict with the plain text and the legislative record of the RIA, which expressly allows concurrent adjustment-of-status filing for EB5 investors. As such, applicants should follow policy developments closely rather than panic over a change whose real-world application is still uncertain.

5. Which Visa is “safer” when adjusting to EB5 status: dual intent vs. single intent

From the analysis above, it is clear that the type of visa an applicant holds directly affects their level of immigrant intent risk. This is a factor every investor needs to evaluate before deciding to adjust to EB5 status.

Those in the U.S. on dual-intent visas are in the most favorable position. H-1B and L-1 holders typically do not have to worry about the immigrant-intent issue, because the very nature of these categories already acknowledges the possibility of pursuing permanent residency in the future. The May 2026 memo also confirms that dual-intent visa categories remain fully compatible with pursuing adjustment of status. As experts read it, maintaining status well should be seen as a positive factor when the agency weighs its discretion.

Conversely, the group holding single-intent visas needs to be far more cautious. F-1, E-2, and O-1A holders must ensure that their EB5 case does not violate the immigrant-intent rule, since these are single-intent categories. This does not mean they cannot adjust to EB5 status in the U.S.; rather, they need a more carefully prepared strategy: timing the filing appropriately, maintaining continuous legal status, and — especially — building a credible narrative about the change of intent after entry.

For those who entered on a B-1/B-2 tourist visa, the level of risk is usually highest, because the originally declared purpose (tourism, short-term business) is almost completely at odds with a decision to settle permanently. Many reputable law firms candidly advise against entering on a tourist visa with a preconceived plan to file for adjustment of status shortly afterward.

6. How to demonstrate good faith and reduce immigrant-intent risk in the 2026 EB5 program

In a context of tightening policy, proactively strengthening one’s “equities” (good-faith factors) becomes the key to a successful adjustment to EB5 status. Rather than waiting for an officer to raise questions and then scrambling to respond, applicants should answer doubts about intent up front in their initial filing.

First is the timing factor. Applicants should avoid filing for adjustment of status within the first 90 days after entry, unless there is a legitimate reason and clear evidence of a change in circumstances. Lengthening the gap between the entry date and the filing date helps weaken the unfavorable presumption from the 90-day rule.

Next is gathering evidence of positive factors. Applicants should prepare documents proving discretionary “plus” factors, including lawful employment in the U.S., a clean immigration record, family and community ties, and investments in the U.S. — a factor that is especially important for EB5 investors. A record of tax compliance is also valuable evidence that the applicant is a responsible member of society. Investors should also anticipate the possibility that USCIS will issue a Request for Evidence (RFE) to support its totality-of-the-circumstances assessment.

Equally important is maintaining lawful status continuously and ensuring the investment capital is transparent. In the 2026 EB5 program, a tight source-of-funds package and a regional center project with a strong chance of approval will significantly reduce overall risk.

Finally, the support of an experienced immigration attorney is all but mandatory. A skilled attorney can help time the EB5 petition and the adjustment-of-status filing appropriately, while helping the applicant avoid immigrant-intent problems tied to single-intent visas. In a period of policy volatility, the choice between adjustment of status and consular processing should be weighed based on each investor’s personal circumstances.

7. Key dates of the 2026 EB5 program every investor should remember

Beyond the immigrant intent factor, 2026 also contains several important dates investors need to know in order to optimize their decisions.

On the capital threshold, the 2026 EB5 program currently maintains a minimum investment of USD 800,000 for projects in targeted employment areas (TEA) or set-aside categories, and USD 1,050,000 for standard projects. Under the RIA, USCIS must adjust the minimum investment thresholds for inflation every five years, with the first adjustment set for January 1, 2027. This creates a clear opportunity: investors who file Form I-526E before the increase can lock in the old threshold for their case.

Most important of all is the legal-protection milestone. Investors who file an EB5 petition before September 30, 2026 enjoy protection under the “grandfathering” provision of current law — widely seen as the safest window for program participants. In other words, if the case is filed before this deadline, the applicant is “anchored” to the rules in effect at the time of filing, even if the Regional Center program changes later.

On visa structure, the RIA reserves a significant share for priority categories. About 32% of EB5 visas each year are set aside for three groups: 20% for rural projects, 10% for high-unemployment areas, and 2% for infrastructure projects. These categories help investors from high-volume countries avoid prolonged backlogs in the non-reserved category. In practice, some rural-category investors granted priority processing have received I-526E approval in as little as 6 to 12 months.

Another encouraging signal is adjudication quality. The I-526E approval rate now exceeds 97%, significantly higher than before the Reform Act, reflecting the program’s improved integrity and investor protections. Taken together, these factors show that even though adjustment-of-status policy is tightening, adjusting to EB5 status in the U.S. remains a viable and attractive route if investors prepare the right way at the right time.

8. Conclusion

In short, immigrant intent truly is a very important factor for anyone wishing to adjust to EB5 status right on U.S. soil. This concept relates not only to the 90-day rule or the distinction between single-intent and dual-intent visas, but is also tightly bound up with USCIS’s new 2026 policy memorandum, which places officer discretion front and center. That said, this is not an insurmountable barrier. With careful preparation on timing, “good-faith” evidence, transparent status, and expert advice, the path to adjusting to EB5 status in the U.S. remains wide open. As the 2026 EB5 program approaches key dates such as the September 30, 2026 grandfathering deadline and the early-2027 investment-threshold adjustment, acting early and with the right strategy is how investors can best protect their interests and shorten their journey toward a permanent green card.

Learn more:

• What Should Investors Do If an EB5 Application of a Family Member Is Denied?
• The KISS Principle in EB5: A Practical Guide to Selecting Safe Projects for Investors
• Securing the Green Card and Getting Your Money Back: How to Build an Effective EB5 Visa Exit Strategy
• What Is EB5 Source of Funds? The Simplest Explanation for New Investors