A U.S. immigration judge has approved a previously denied I-829 petition involving an EB-5 investor, the first successful renewal of its kind in immigration court, according to Klasko Immigration Law Partners, who filed the suit.
The recent court ruling places the renewal of I-829 petitions at the center of the EB-5 landscape, amid a significant increase in denials by the United States Citizenship and Immigration Service (USCIS).
The recent approval is expected to establish a precedent for future I-829 renewals for EB-5 investors who face petition rejections.
“It is human nature in any field for people addressing an issue for the first time to look to someone who has dealt with the issue to see how they dealt with it. Hopefully, that will be the case here,” said EB-5 attorney Ronald Klasko from Klasko Immigration Law.
He added, “There appear to be far more I-829 denials in 2025 than ever before. An unfortunate trend is the issuance of I-829 denials based on a re-adjudication of the same source and path of funds that had been approved many years earlier in the adjudication of the I-526 petition. I expect this re-adjudication to be challenged in federal court ultimately.”
Filing the I-829 petition is the last stage of the EB-5 application process. It is crucial for investors to remove conditions and obtain permanent residency in the U.S.
Since March this year, according to updated U.S. agency policy, all I-829 denials result in Notices to Appear (NTAs), which initiate detention and removal proceedings before an immigration court.
What led to the claim against this I-829 denial before an immigration court?
An EB-5 investor client of Klasko Law faced such a denial, which resulted in an NTA and detention earlier this year. She was one of the 24 investors in the same project who had their I-829 petitions denied. She had departed the U.S. before the government issued her NTA, which initiated her detention upon reentry.
A specialized team of attorneys at the law firm filed a claim that led to a favorable ruling. The immigration judge said that her detention was incorrect since she was not an “arriving alien.” The ruling also states that the U.S. government failed to meet the required criteria for her to apply for re-entry at the border.
The underlying issue of these denials is how the NTA and consequent detention affect EB-5 investors.
“For the investor, the NTA transforms an administrative challenge into a judicial battle,” says Debbie Klis, securities attorney from Rimon Law. “While the investor retains the right to renew their I-829 petition in immigration court, where an immigration judge can make an independent decision and consider new evidence, the process is lengthy, costly, and fraught with uncertainty.”
Investors also face practical challenges with international travel, including potential issues at ports of entry and the risk of detention.
EB-5 attorney Tony Wong from Wong & Associates cautions that detention is common practice today.
“After an NTA is issued, EB-5 investors or their dependents, who are overseas, are likely to be detained at the border when they come back to the States. CBP may not admit the investors or their family to the US or urge them to abandon the residency if an NTA is issued,” he adds.
Why are petitioners being denied at the last stage of the EB-5 process?
Since March, USCIS has revised its review process, resulting in higher denial rates for final EB-5 applications. This includes a stricter review of previously settled aspects of cases, such as the source of funds.
“The re-examination of source of funds introduces an element of unpredictability to previously approved cases, while the mandatory NTA policy ensures that a denial immediately places the investor’s and their family’s U.S. residency in immediate jeopardy,” Klis said.
According to Klasko, three factors contribute to this growth: the source and path of funds, which had never previously been reviewed at the I-829 stage; more project-related and sustainment of investment denials; and President Trump’s policy to issue NTAs for all I-829 denials.
EB-5 attorney Bobi Ahn confirms there has been an uptick in ICE/USCIS site visits at JCEs before I-829 approvals
“In most cases, our I-829s have been getting approved after the site visit, even if the business is losing money, etc.,” Ahn says. “As long as you provide adequate proof that the investor has complied with the business and investment plan, but outside circumstances (ie, economic downturn, COVID, etc) have caused loss of revenue, etc.”
Until now, the agency had more discretion in referring cases to Immigration and Customs Enforcement (ICE), which would then decide whether to initiate removal proceedings.
However, the new reality poses significant immigration challenges for EB-5 investors, turning a procedural step into a critical final hurdle.
“The denial notice terminates the investor’s conditional permanent resident status, though the status is only finally terminated by a sustained order of an immigration judge,” Klis says.
How could this approval influence potential I-829 renewals?
The claim resolution highlights that investors can now seek remedies in immigration court for their denied I-829 Applications.
However, until 2025, renewing an I-829 before an immigration judge was rare.
“Most judges have never heard an I-829 case,” attorney Klasko says.
The ruling is expected to pave the way for similar I-829 renewals for EB-5 investors facing denials.
Litigation attorney Robert V. Cornish from the Law Offices of Robert V. Cornish, Jr., PC, notes the potential implications of the claim in benefit of the EB-5 legal landscape.
“The Klasko Firm should be commended for taking judges of the US immigration courts to task to remedy what are clearly nonsensical decisions by USCIS,” he says.
However, Klasko cautions that it will take time before immigration judges start using this reference in future decisions.
“It generally takes years for a foreign national to get a hearing on the merits. The only reason that this case was heard more expeditiously is because the foreign national was detained. I expect that there will be a significant number of hearings on the merits starting mid to late 2026.”
In the meantime, Wong cautions that EB-5 petitioners and their dependents should remain in the U.S. or be ready to return after submitting a response to the I-829’s request for further evidence or denials, as the rejection can occur at any time.
“The investors should also timely file a motion to avoid the issuance of NTA. USCIS officers have discretion to issue an NTA and file it with the immigration court without any warning. If an NTA is issued, the investors should appear,” he concludes.
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