Who Should Care: This rule change mainly affects Chinese executives and investors applying for employment-based green cards (EB-1C, EB-5) who traditionally rely on filing I-485 adjustment of status (AOS) while in the US. It also impacts H-1B holders and other nonimmigrant visa holders planning to transition to permanent residency without leaving the US.

What Changed: The US Citizenship and Immigration Services (USCIS) has amended regulations to require that green card applicants file their adjustment of status applications (Form I-485) from their home country or abroad, rather than within the US. This means applicants currently in the US on nonimmigrant visas may no longer be eligible to adjust status domestically and must pursue consular processing instead. This aligns with INA §245(a) and 8 CFR 245.2(a)(1)(i) which govern adjustment eligibility.

From our practical experience, this change will particularly affect Chinese business executives applying under EB-1C and investors under EB-5 who have used the adjustment of status pathway to avoid travel interruptions. We recently handled a case where a client had prepared to file I-485 while on L-1 status in the US, but due to this update, had to switch to consular processing, which added complexity but ultimately secured approval.

Step-by-Step Action Plan:

  1. 1Verify your current visa status and whether you have pending or planned I-485 filings. If you are on L-1, H-1B, or other nonimmigrant status and planned to file I-485 in the US, prepare for consular processing instead.
  2. 2Contact your HR or immigration counsel immediately to coordinate document preparation for the National Visa Center (NVC) and your US consulate in China.
  3. 3Monitor appointment availability at your home country consulate and prepare for the visa interview accordingly.
  4. 4For EB-5 investors, ensure your project documentation and source of funds are fully prepared, as consular processing may require additional scrutiny.
  5. 5Maintain lawful status in the US while preparing to depart and apply abroad to avoid unlawful presence issues.

Firm-Specific Insight: Based on our hundreds of cases, we see that proactive communication with consulates and early preparation of consular processing documents can reduce delays. We also recommend clients avoid terminating US employment or closing US company operations until the consular interview is complete to maintain business continuity.

This change does not affect the initial immigrant petition (I-140) filing, which can still be done from the US or abroad. However, the final step to permanent residency must now be completed overseas. We advise clients to review their immigration timelines carefully and adjust their plans accordingly.

In summary, affected applicants should immediately evaluate their filing strategies and switch to consular processing if applicable. Early preparation and coordination with immigration counsel and US consulates will be key to a smooth transition under this new rule.

Data Sources

[1] USCIS, uscis.gov [2] INA §245(a), 8 CFR 245.2(a)(1)(i)