In a major shift with implications for EB-5 investors and other parole-based adjustment of status (AOS) applicants, Immigration and Customs Enforcement (ICE) issued interim guidance on July 8, 2025 that reinterprets INA § 235 as the primary statutory authority governing detention for “applicants for admission”—including individuals reentering the U.S. on advance parole.
This change in policy has already resulted in increased enforcement, re-detention of previously released individuals, and removal proceedings triggered by discretionary interpretations of lawful presence and intent.
What the ICE Memo Says
The guidance clarifies that:
- DHS now treats advance parole entrants—even those with pending AOS applications—as “applicants for admission” subject to mandatory detention under INA § 235(b), not discretionary custody under INA § 236.
- These individuals cannot be released from ICE custody except through DHS-authorized parole under INA § 212(d)(5).
- They are ineligible for bond hearings before an immigration judge and cannot rely on Form I-286 custody determinations, which ICE will no longer issue in these cases.
- Individuals previously released under INA § 236 are not automatically considered paroled, and ICE is not required to correct past paperwork to reflect INA § 212(d)(5) parole.
This shift significantly affects EB-5 investors who travel on advance parole and return as “arriving aliens”—a designation that limits procedural safeguards and exposes them to mandatory detention, removal, and denial of AOS.
Key Risks for EB-5 Applicants Traveling on Advance Parole
1. “Arriving Alien” Status = No Bond Hearing
An EB-5 investor reentering on advance parole may now be treated as an “applicant for admission,” making them:
- Ineligible for release on bond;
- Detainable without a judge’s review unless DHS grants discretionary parole;
- Susceptible to re-detention, even if previously released.
2. Triggers for Removal Despite Pending AOS
The presence of a pending AOS application does not guarantee protection from removal or detention. Factors that could lead to negative action include:
- Unauthorized employment;
- Visa overstays;
- Filing AOS during a grace period or after SEVIS termination;
- Documented immigrant intent at entry (e.g., leases signed before arrival);
- B visa entry followed by immediate adjustment filing;
- Any contact with law enforcement, even expunged cases;
- Employer withdrawal of a nonimmigrant petition.
3. Parole ≠ Lawful Status
A DHS grant of parole does not confer a formal immigration status. While it may allow an applicant to remain in the U.S. without accruing unlawful presence, the individual is still considered in unlawful status, subject to removal at DHS discretion.
What EB-5 Clients and Their Attorneys Should Do
Given this high-risk climate, attorneys representing EB-5 applicants should:
- Re-evaluate travel plans: Strongly advise against using advance parole unless absolutely necessary.
- Reassess AOS strategies: Consider consular processing instead of adjustment from within the U.S., especially where risk factors exist.
- Screen thoroughly for inadmissibility triggers, including prior overstays, public school enrollment on B visas, and employment violations.
- Prepare clients for reentry scrutiny: Ensure parolees understand their rights and the heightened risk of being detained at ports of entry.
- Document equities and prosecutorial discretion factors in the AOS file to preempt negative discretionary decisions by USCIS or DHS.
Final Thoughts
The July 8, 2025 ICE memo signals a tougher stance on parole-based entry and adjustment under the Biden administration’s enhanced enforcement framework. For EB-5 investors relying on advance parole, the message is clear: even with a pending green card application, your reentry could now mean mandatory detention and removal, especially if any “aggravating” factor is present.
Ahluwalia Law Offices continues to monitor these developments closely. We are prepared to assist EB-5 clients and their families with advanced legal planning, representation in detention and removal proceedings, and compliance strategies tailored to the current enforcement climate.
