INA §245(f) is the EB-5 conditional-resident adjustment bar
INA §245(f) states that the Attorney General may not adjust under subsection (a) the status of a person lawfully admitted to the United States for permanent residence on a conditional basis under INA §216A.
A current EB-5 conditional permanent resident generally cannot receive another §245(a) adjustment grant while the §216A conditional residence remains in effect.
The statute operates separately from the §245(c) adjustment bars.
INA §216A governs EB-5 conditional residence
INA §216A applies conditional permanent resident status to qualifying EB-5 investors and qualifying derivative spouses and children.
The statute governs:
- The conditional basis of the residence;
- Termination of conditional status;
- The petition to remove conditions;
- Investment requirements;
- Job-creation requirements;
- Interview provisions;
- Derivative treatment; and
- Review of adverse determinations.
Who is subject to §245(f)?
The bar applies to a person currently holding conditional permanent residence under INA §216A.
That can include:
- The principal EB-5 investor;
- The investor's qualifying spouse whose residence is derivative; and
- The investor's qualifying child whose residence is derivative.
Form I-829 is the normal route to unconditional permanent residence
Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, is the statutory mechanism for an EB-5 conditional resident to seek removal of the conditions.
The petition addresses whether the investor satisfies the requirements imposed by INA §216A and the applicable EB-5 provisions.
The I-829 filing period
Current INA §216A generally requires the I-829 petition to be filed during the 90-day period immediately preceding the second anniversary of the investor's lawful admission for permanent residence.
Current USCIS I-829 instructions likewise direct investors to file during that 90-day period.
What the I-829 must establish
Current INA §216A requires the petition to contain evidence addressing the EB-5 investment and job-creation requirements.
Depending on the governing petition and statutory regime, the evidence can involve:
- The required capital investment;
- Compliance with applicable investment requirements;
- Creation of the required qualifying employment;
- Active progress toward required employment where the statute allows additional time;
- Continued conformity with the requirements of INA §203(b)(5);
- The new commercial enterprise;
- Regional center or job-creating entity evidence where applicable; and
- Other requirements imposed by the applicable EB-5 law.
The readjustment bar prevents an investor from avoiding this statutory I-829 review by switching to an unrelated immigrant petition while still holding conditional EB-5 residence.
Derivative spouses and children
INA §216A also governs conditional residence obtained by qualifying spouses and children of the EB-5 investor.
Current I-829 procedures permit qualifying derivatives to be included in or, in specified circumstances, separately file the removal-of-conditions petition.
Current USCIS instructions address situations involving:
- A spouse;
- A former spouse;
- Children who have turned 21;
- Children who marry during conditional residence;
- Derivatives not included in the principal's petition; and
- Death of the principal investor.
Marriage to a U.S. citizen while holding EB-5 conditional residence
Suppose an EB-5 conditional resident later marries a U.S. citizen who files Form I-130.
Approval of the I-130 does not itself allow USCIS to approve a new §245(a) adjustment while the EB-5 conditional resident status remains in effect.
A new employment petition also does not ordinarily bypass §245(f)
An EB-5 conditional resident might later qualify for:
- EB-1A;
- EB-1B;
- EB-1C;
- EB-2 NIW;
- EB-2 PERM;
- EB-3; or
- Another employment-based immigrant classification.
The new petition can potentially become important after termination of the EB-5 conditional status, but it does not itself permit readjustment while §216A conditional residence remains in force.
Termination of EB-5 conditional residence
INA §216A permits termination of conditional residence under specified circumstances.
Potential issues include:
- Failure to timely file Form I-829;
- Failure to establish the required investment;
- Failure to satisfy qualifying employment-creation requirements;
- Failure to remain in conformity with applicable EB-5 requirements;
- Adverse findings concerning the investment; and
- Other statutory grounds for termination.
USCIS applies the Stockwell principle to §§245(d) and 245(f)
Matter of Stockwell itself arose under family-based conditional residence and INA §245(d).
USCIS's November 21, 2019 policy guidance expressly addresses both §245(d) and §245(f).
USCIS explained that both provisions bar a person currently holding conditional permanent residence from adjusting under §245(a), while Stockwell allows adjustment on a new basis after the conditional permanent resident status has been terminated in qualifying circumstances.
The controlling question for the conditional-resident bar is whether the person still holds conditional permanent resident status when seeking the new §245(a) adjustment.
Adjustment on a new basis after EB-5 CPR termination
After termination, a former EB-5 conditional resident may potentially seek adjustment based on:
- Marriage to a U.S. citizen;
- Another qualifying family petition;
- EB-1;
- EB-2 or NIW;
- EB-3;
- VAWA;
- A special immigrant petition;
- Diversity Visa eligibility; or
- Another qualifying immigrant basis.
The new case must independently establish:
- Eligibility under §245(a) or another adjustment statute;
- A qualifying immigrant basis;
- Visa availability;
- Admissibility;
- No applicable adjustment bar;
- Jurisdiction; and
- Favorable discretion.
EB-5 CPR termination and removal proceedings
A person whose EB-5 conditional residence has been terminated can seek review of specified adverse determinations in removal proceedings.
The proceeding can involve:
- Whether the termination was legally proper;
- The truth of the I-829 evidence;
- Compliance with investment requirements;
- Job creation;
- Fraud allegations;
- The burden of proof specified by INA §216A;
- Eligibility for a new adjustment basis; and
- Other available relief from removal.
Late Form I-829 filings
Current INA §216A and USCIS instructions permit consideration of a late I-829 where the investor establishes good cause and extenuating circumstances for failing to file during the prescribed 90-day period.
A missed filing window should not automatically be treated as requiring a new adjustment application. Determine first whether USCIS can accept a late I-829.
Current I-829 instructions warn that failure to timely file can lead to termination of conditional permanent resident status and removability.
The EB-5 Reform and Integrity Act changed the statutory framework
The EB-5 Reform and Integrity Act of 2022 amended significant portions of the EB-5 program, including INA §216A.
Current EB-5 conditional-residence analysis may depend on:
- When the underlying petition was filed;
- Whether the investment is direct or regional-center based;
- The statutory requirements applicable to the petition;
- Investment sustainment rules;
- Job-creation timing;
- Regional-center sanctions or termination;
- Good-faith investor protections; and
- Any statutory cure, reassociation, or redeployment provisions.
INA §245(f) expressly refers to adjustment under subsection (a)
Like the family conditional-resident bar in §245(d), §245(f) states that the person may not be adjusted “under subsection (a).”
A person pursuing permanent residence through an entirely separate adjustment statute may therefore require a different analysis.
Evidence checklist for an INA §245(f) case
| Evidence | Purpose |
|---|---|
| I-526 or I-526E petition | Establishes the original EB-5 immigrant classification and applicable statutory regime. |
| I-485 or immigrant visa record | Establishes when and how EB-5 CPR status began. |
| Conditional Form I-551 | Shows EB-5 conditional residence. |
| Form I-829 | Shows whether removal of conditions was requested. |
| I-829 receipt notice | Documents continued conditional-resident evidence during adjudication. |
| I-829 decision | Identifies approval, denial, or termination issues. |
| Investment evidence | Addresses capital, sustainment, enterprise, and statutory compliance. |
| Job-creation evidence | Addresses the employment requirements under the applicable EB-5 statute. |
| Termination notice | Important to determining whether §245(f) remains applicable. |
| New immigrant petition | Establishes a proposed adjustment basis after CPR termination. |
| Removal records | Establish jurisdiction and review of termination. |
Frequently asked questions
I have an EB-5 conditional green card. Can I adjust through my U.S. citizen spouse?
Generally not while EB-5 conditional permanent resident status remains in effect. INA §245(f) bars ordinary §245(a) readjustment.
Can I adjust through EB-1 or NIW instead of filing I-829?
Not ordinarily while you remain an EB-5 conditional permanent resident. A new immigrant petition does not eliminate §245(f).
What is the normal way to remove EB-5 conditions?
Form I-829 is the statutory removal-of-conditions procedure for qualifying EB-5 investors and derivatives.
When is Form I-829 filed?
Current law generally requires filing during the 90-day period immediately preceding the second anniversary of the investor's conditional permanent residence, subject to specialized statutory rules and late-filing provisions.
Can USCIS accept a late I-829?
Potentially. Current INA §216A and USCIS instructions permit consideration of a late filing where good cause and extenuating circumstances are established.
Can I file a new I-485 after my EB-5 conditional residence is terminated?
Potentially. USCIS policy applying Matter of Stockwell recognizes adjustment on a new basis after termination of conditional residence when the applicant independently qualifies.
Does INA §245(k) override §245(f)?
No. Section 245(k) overrides only §245(c)(2), §245(c)(7), and §245(c)(8).
Are my spouse and children also conditional residents?
Qualifying EB-5 derivative spouses and children generally obtain conditional permanent resident status under INA §216A and must be addressed through the applicable I-829 procedures.