EB-5 and the 75-Country Travel Ban

### The entry / status distinction

The most consequential feature of INA § 212(f) for EB-5 strategy is that it operates on entry, not on status. An individual who is already in the United States in lawful nonimmigrant status (H-1B, L-1, O-1, F-1 with appropriate authorization, E-2, or other) is not barred by a § 212(f) proclamation from filing an EB-5 petition (Form I-526E) or from filing for adjustment of status (Form I-485) where eligible. The statutory authority does not reach inside the United States to terminate cases that are not entry-dependent.

This means that a national of a 75-country state who is in the United States in lawful nonimmigrant status when the restrictions issue, who maintains that status, and who pursues concurrent I-526E and I-485 filings (where the priority date is current and the underlying nonimmigrant status is otherwise compatible), is not barred by the § 212(f) entry proclamation from completing the adjustment-of-status process. The investor's path runs through USCIS adjudication of the I-485 rather than through consular processing abroad, and the § 212(f) entry suspension does not, on its face, reach the I-485.

The public-charge caveat is critical here. The immigrant-visa suspension that reaches 75-country nationals abroad is grounded in public-charge inadmissibility under INA § 212(a)(4), and that inadmissibility ground applies at the I-485 stage as well. The entry/status distinction that limits Proclamation 10998 therefore does not automatically shield an adjustment applicant from the public-charge basis underlying the suspension; an affected investor should expect the I-485 to be examined on public-charge grounds and should document adequate assets, the investor's income and self-sufficiency, and any affidavit-of-support or comparable evidence accordingly. Whether a particular applicant clears public-charge review depends on the totality of the circumstances and the discretion of the adjudicating officer.

For nationals of the 75-country list who are abroad when the restrictions issue, or who are in the United States but whose underlying status would require consular processing for completion (because, for example, the priority date is not current and the investor would need to depart and return on an immigrant visa), the public-charge suspension does block the immigrant-visa pathway. Consular officers in 75-country posts are not issuing immigrant visas to affected nationals. The blocked pathway forces alternatives: dual-intent nonimmigrant entry followed by AOS from within the United States, citizenship by investment in a non-banned country, or family-based or other employment-based alternatives.

For nationals of the 19-country full-pause list, the broader scope reaches nonimmigrant adjudications as well. Consular processing for these nationals is paused across categories. The strategies that depend on dual-intent nonimmigrant entry (typically H-1B or L-1 for EB-5 purposes) are unavailable through consular processing for 19-country nationals while the proclamation is in effect; nationals who are already in the United States in lawful nonimmigrant status remain inside the AOS pathway, but the population that can newly enter is constrained.

### USCIS adjudication during the proclamation period

USCIS has continued to adjudicate I-526E petitions filed by nationals of 75-country and 19-country states during the proclamation period. The petitions are adjudicated on the same statutory and regulatory framework that applies to all EB-5 investors: INA § 203(b)(5), 8 C.F.R. § 204.6, RIA Section L source-of-funds requirements, project-side documentation, and the post-RIA adjudication standards described elsewhere on this site.

What changes is the downstream pathway. An approved I-526E for a national who must obtain an immigrant visa abroad cannot, in practice, be acted upon at a 75-country consular post during the proclamation. The petition remains approved; the immigrant visa is not issued. The investor's options become: wait for the proclamation to lift, transfer the consular processing to a third-country post if eligible (subject to that post's discretion to accept third-country nationals), or pivot to AOS if the investor can lawfully reach the United States in dual-intent nonimmigrant status.

For investors with concurrent I-485 applications already pending when the proclamation issues, USCIS continues to adjudicate the I-485 on the merits. The proclamation does not, by its statutory authority, terminate pending AOS applications. AILA practitioners report that USCIS has not invoked national-security holds on EB-5 I-485s solely on the basis of the proclamation, though case-specific national-security review remains available to USCIS on its independent authority.

For I-829 (Form I-829, removal of conditions) adjudications, AILA practitioners have observed that some I-829 source-of-funds RFEs have included explicit national-security framing, and that "national-interest"-language denials are harder to overcome in removal proceedings. Whether this framing reflects an internal USCIS directive tied to the proclamations or independent case-specific review is not publicly clear. The defensive posture for I-829 filers from affected countries typically includes thorough source-of-funds re-documentation, declarations addressing national-security concerns where relevant, and forensic-accounting support in distressed-project scenarios.

The current immigration-court backlog of approximately 3.4 million cases, with individual hearings scheduled three to four years out, affects investors whose I-829 denials are paired with Notices to Appear (Form I-862). For investors from affected countries, removal proceedings introduce additional complexity where national-security framing has been part of the underlying USCIS posture.

National-security framing in I-829 RFEs. AILA practitioners have observed I-829 source-of-funds RFEs that include explicit national-security framing. The framing tends to be qualitative rather than tied to specific evidentiary thresholds; responses typically address the framing through declarations and documentation rather than through legal argument alone.

Removal-defense exposure following denial. Where an I-829 is denied and a Notice to Appear is issued, removal proceedings before EOIR follow. For investors from affected countries, the proceedings may include national-security-flavored arguments that are difficult to overcome. Practitioners emphasize preservation of Matter of Herrera del Orden's de novo review right, motion to disqualify any temporary judges, and strategic use of subpoenas.

Status-maintenance lapse patterns. Investors who allow underlying nonimmigrant status to lapse during a proclamation period may find themselves outside the AOS pathway and inside the consular pathway, which for 75-country nationals is blocked. Where USCIS issues an RFE on the underlying I-526E during such a lapse, the response posture is sharply constrained.

Concurrent I-485 collapse on I-526E denial. Where a concurrent I-485 was filed but the underlying I-526E is denied, the I-485 fails. If the investor's underlying nonimmigrant status was not maintained during AOS pendency, unlawful presence may begin to accrue. AILA practitioners have flagged this as a recurring risk for concurrent filers.

Country-list shifts mid-adjudication. The proclamations have been modified previously, and the country list is subject to change by subsequent presidential action. Investors whose status changes from "covered" to "not covered" (or vice versa) by an amendment to the proclamation may see their pathways open or close on relatively short notice. Practitioners typically counsel investors not to rely on the current list as static.