By Bernard Wolfsdorf, Joey Barnett, and Serena Siew
If you are a conditional permanent resident (CPR) through the EB-5 program and your I-829 petition to remove conditions was denied, you will likely receive a Notice to Appear (NTA) for removal proceedings before the immigration court.
One legal option to remain in the U.S. after issuance of an NTA is to apply for Cancellation of Removal for Lawful Permanent Residents (LPR Cancellation) under Section 240A(a) of the Immigration and Nationality Act. This complex process involves seeking relief from removal before an immigration judge.
The process of a LPR cancellation removal
To qualify for LPR Cancellation, you must:
- Be a Lawful Permanent Resident (LPR) for at least 5 years at the time of application.
- Have continuous residence in the U.S. for 7 years after admission in any status.
- Have no aggravated felony convictions.
- Prove your case merits favorable discretion from the immigration judge.
Generally, despite the regulations and language in Form I-829s, the conditional permanent resident status is only terminated if the immigration judge sustains the I-829 denial, meaning you may still be considered a conditional LPR during removal proceedings.
Master calendar hearings
The first hearing will be a Master Calendar hearing in immigration court, where you may, through your attorney, address any issues related to the I-829 denial, as well as your intent to apply for LPR Cancellation as a form of relief. The next step is to file the EOIR-42A (Application for LPR Cancellation) with the immigration court, pay the filing fee and biometrics fee to USCIS. The application is submitted with supporting documents that include:
1) Proof of 5 years as an LPR (e.g., green card, tax returns).
2) Evidence of 7 years of continuous residence (leases, school/work records, medical/dental records, tax returns, etc.).
3) Proof of good moral character (including family ties, hardship, employment, and other contributions, including religious and community-based, etc.).
4) Proof of positive equities (U.S. citizen or LPR family members, community involvement, rehabilitation (if any prior offenses).
Individual Hearing
The next step is the individual hearing, where you present your case to the immigration judge. The government may contest your eligibility for LPR Cancellation or discretionary merits. If granted, you will retain or regain permanent residence.
This is often where consulting or retaining an experienced removal defense attorney with knowledge of EB-5 law and I-829 denials. It’s important to be strategic and possibly pursue multiple forms of relief simultaneously (e.g., LPR Cancellation, adjustment of status, or even voluntary departure as a fallback).
Important points
Important Points
• The denial of an I-829 does not automatically terminate LPR status. Only the immigration judge’s final order of removal does that.
• In some instances, it may be advisable to consider filing a motion to reconsider/reopen the I-829 denial to present additional supporting evidence.
• You must prove that you are still an LPR when applying for cancellation.
DISCLAIMER: The views expressed in this article are solely the views of the author and do not necessarily represent the views of the publisher, its employees. or its affiliates. The information found on this website is intended to be general information; it is not legal or financial advice. Specific legal or financial advice can only be given by a licensed professional with full knowledge of all the facts and circumstances of your particular situation. You should seek consultation with legal, immigration, and financial experts prior to participating in the EB-5 program Posting a question on this website does not create an attorney-client relationship. All questions you post will be available to the public; do not include confidential information in your question.
