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What happens if a conditional permanent resident resides in the U.S. for five years and then receives an I-829 denial?

Let''s say someone was a student in the United States for two years before receiving conditional permanent residency. Given that I-829 processing times are now running several years, it is possible that they could be a (conditional) lawful permanent resident for 5 years before ultimately receiving a denial of their I-829. While I realize that would make them ineligible to apply for naturalization, would it qualify them for a Cancellation of Removal? I understand the 3 requirements are (1) 5 years of green card status, (2) 7 years of continuous presence and (3) no aggravated felony convictions.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    That is an interesting question, but ICE would take the position that the green card status terminated upon denial of the I-829 petition, which would have taken place prior to the issuance of any Notice to Appear (NTA). An alternative form of relief in removal proceedings would be to renew the I-829 petition if it actually is approvable. Then, the person would need cancellation of removal relief. Also, just because USCIS denies the I-829 petition does not mean that it will issue an NTA, although it should. Cancellation of removal is not available unless/until the person is placed into removal proceedings.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, once one receives their Lawful Permanent Residency based upon their initial EB-5 petition on Form I-526 and the petitioner is admitted to the U.S. as an immigrant on a conditional basis or, alternatively, has filed an Application for Adjustment of Status and that application is approved for Lawful Permanent Residency, one would have up to 2 years of conditional Lawful Permanent Resident status before needing to file the Petition to Remove Conditions on Form I-829. That petition, in turn, may take as long as several years before it is adjudicated. During that time, the individual remains a conditional Lawful Permanent Resident of the United States and may even file for U.S. citizenship 5 years after one has acquired conditional Lawful Permanent Residency. It is possible that the adjudication of the I-829 petition would be delayed for so long that one could file an Application for Naturalization on Form N-400 4 years and 9 months after obtaining conditional Permanent Residency and, in theory, be adjudicated a citizen of the United States before a final decision is made on the I-829 petition. However, that would be unusual. If the I-829 petition is denied, the best bet would be to contest same and, of course, one would file for cancellation of removal only if they were put into deportation/removal proceedings.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If for any reason the I-829 Removal of Conditions is denied, you have the option to file an appeal (if there is a mistake in the fact pattern or a misapplication of law, etc.). If not, you would no longer be in status and would need to depart the country within a reasonable time. Removal proceedings would be stayed during this reasonable period of time.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is correct that a conditional permanent resident whose I-829 is denied can apply for a Cancellation of Removal. The applicant must (1) have been a lawful permanent resident for at least the last 5 years; (2) have lived continuously in the U.S. for at least 7 years after having been legally admitted, and without having committed certain crimes; and (3) not have been convicted of an aggravated felony at any time. However, this category is limited to an annual cap of 4,000 visas nationwide. The demand has far exceeded availability and, as of the start of the new fiscal year on October 1 of each year, the new quota is released. Unfortunately, this discretionary remedy does not really work well as a solution since reserved cases must get in line and wait until the visa is available. This could be a very long wait considering how many cases are in line.

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