A denial of an I-829 petition by the U.S. Citizenship and Immigration Services (USCIS) can result in the loss of lawful residency for the EB-5 investor and their dependent family members. However, it is not the end of the road.
“Investors are seeing I-829 denials now more than ever, particularly investors who obtained conditional permanent residency based on stalled or failed projects that didn’t create the required jobs, but also based on a re-adjudication of lawful source of funds, typically a Form I-526 requirement,” Joey Barnett from WR Immigration.
So, what happens when an I-829 petition is denied? The USCIS cancels the resident status of the investor and their dependents. Nevertheless, they maintain their permanent resident status until an immigration judge completes removal proceedings or until the conclusion of any subsequent appeal.
“It’s also more likely that a Notice to Appear (NTA) is included with the I-829 denial to commence removal (deportation) proceedings against the immigrant investor,” Barnett said. “This can be a highly stressful situation, and although there are pathways to remain in the U.S. or obtain a green card on an alternative basis, it can be a challenge to understand which option makes the most sense for family members based on their current goals and relationships.”
EB-5 attorney Michael Piston of Piston & Carpenter notes, “It is hard to imagine a more traumatic (immigration) event for a foreign investor than having gone through the excruciatingly long process of obtaining approval of a form I-526 (5 to 8 ½ years by current announced processing times), relocating oneself and one’s family to the United States, completing one’s two-year conditional permanent residence, then filing a form I-829 and waiting the about 4-year current estimated processing time for that petition, only to find that it is denied. To find such a grim roadblock awaiting one so far down such a long, long road is certainly a truly disheartening experience. Nevertheless, for those willing to sustain the time, energy, and (of course) expense of soldiering on, there are still viable options left to pursue, which may ultimately snatch victory from the jaws of disaster.”
What are the first steps after a denial?
EB-5 attorneys explain that the investor and their legal counsel must first understand the reasons behind the petition’s denial. They should then analyze the next steps, which may include legal actions such as seeking an administrative review with USCIS immigration judges or pursuing a case in federal court.
“Such denials are normally extremely fact intensive and careful review with legal counsel of the basis for the denial will undoubtedly raise numerous issues of varying complexity which are beyond the scope of this discussion,” Piston says.
“When we’re asked to advise on a denied I-829, we review the case and the basis for the denial. If we want to take the case, we file a motion to reopen [MTR] because there is no appeal of an I-829 denial,” said immigration attorney Carolyn Lee of Carolyn Lee PLLC. The motion to reopen must be filed within 30-33 days of the decision, so it’s an intensive effort.”
After an MTR is submitted, some time may be required to process it. However, the I-829 petitioner and their eligible dependents can retain their conditional permanent residency status and extend their I-551 stamps during this period.
Decisions made by USCIS can also be reviewed by the Board of Immigration Appeals (BIA), which serves as the highest administrative body responsible for interpreting and applying immigration laws in the United States.
“If the immigration judge upholds the I-829 denial, the investor can appeal that decision to the Board of Immigration Appeals and to the applicable Court of Appeals if he is unsuccessful before the BIA,” Piston says.
He explains that the USCIS Policy Manual states that an investor is entitled to temporary evidence of permanent residency until the BIA makes a decision. If the investor seeks judicial review in the Court of Appeals, they can request a stay of the removal order, which may extend their temporary I-551 status. To succeed, they must demonstrate a strong likelihood of prevailing in their petition, specifically proving that the immigration judge incorrectly found that the DHS adequately justified the denial of their I-829.
Lee adds that if a Notice to Appear (NTA) is issued, instituting removal proceedings, the client’s eligibility for the removal of conditions and I-829 approval can be re-argued before an immigration judge.
“The burden shifts to ICE [U.S. Immigration and Customs Enforcement] to prove removability, so the investor is in a more favorable posture in terms of the evidentiary burden than on the affirmative I-829 submission,” Lee said.
Yuliya Veremiyenko-Campos from YVC Legal PLLC explains that an immigration judge has the authority to review the reasons for the denial “de novo (from the beginning) and can overturn USCIS’s denial if the investor proves eligibility. Thus, investors may get a second bite of the apple to get their I-829 approved.”
Lee emphasizes that if there is a strong theory for job creation and the sustainability of the investment, key EB-5 requirements, the investor should ultimately prevail. However, “the tougher questions relate to discretionary findings, for example, as relates to the lawful source of funds. We find that those are much more contextual and involve subjective determinations. Those cases may ultimately have a better shot in removal proceedings, assuming the record is solid and well-prepared.”
Piston adds, “It is the [Department of Homeland Security] DHS which must prove that the investor did not qualify to lift the conditions of their residence. Accordingly, if, as is often the case, it simply cannot be determined from the record whether the requirements for the lifting of conditional permanent residence have been satisfied or not, that means that the investor should prevail and be restored to conditional permanent resident status.”
It’s important to note that it can take several months for USCIS to adjudicate a motion to reopen or reconsider a case, and the timeline can extend further if the case progresses to the federal court system.
Veremiyenko-Campos also advises against international travel during this period due to inconsistencies in USCIS policies and Department of Homeland Security (DHS) regulations regarding leaving and re-entering the U.S. Investors may face the risk of being denied re-entry.
Additionally, there have been instances where U.S. Customs and Border Protection (CBP) agents have detained permanent residents returning from abroad when USCIS has issued a notice to appear before Immigration Court for removal proceedings.
Also, the entire process can generally take several months to years to resolve, depending on the complexity of the case and the backlog of immigration court cases.
What other options do EB-5 investors have with a denied I-829?
One option for investors is to file a new EB-5 petition with a new investment to maintain their lawful permanent resident status in the U.S. They would have to file a new I-526. The average processing time for a new EB-5 visa application ranges from several months to over a year, depending on the workload and backlog at the time of filing.
Another option is to explore other U.S. visa alternatives. To qualify for an O-1 visa, investors must demonstrate extraordinary ability in their field. In contrast, the H-1B visa requires sponsorship by a U.S. employer for a specialty occupation.
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