By Jessica DeNisi
Recently, the United States Citizenship and Immigration Services (USCIS) has issued an unprecedented number of I-829 petition denials followed by Notices to Appear (NTA). This situation results in EB-5 investors finding themselves in unanticipated and unwelcome removal proceedings before an immigration judge.
Before February 2025, EB-5 investors with denied I-829 Petitions by Investor to Remove Conditions on Permanent Resident Status rarely received NTAs, even if they wanted to seek an immigration court to review their I-829 petitions. Federal courts have consistently held that they lack jurisdiction to review a denied I-829 petition, leaving review through the Executive Office of Immigration Review (EOIR) as the sole administrative option.
However, that changed with the February 28, 2025, USCIS Policy Memorandum (PM6020187) titled “Issuance of Notices to Appear (NTAs) in Cases Involving Inadmissible and Deportable Aliens.” This memo shifted the agency’s policy on initiating removal proceedings by issuing these notices when an immigration benefit request is denied, like the denial of an I-829 petition.
WHAT IS THE EB-5 PROCESS OVERVIEW?
For an EB-5 investor, the process begins with the Form I-526 or I-526E petition, which serves as the foundation of their case. At this stage, the petitioner must demonstrate that the investment capital was obtained through a lawful source and that every step in the path of those funds into the New Commercial Enterprise (NCE) can be documented and verified. This initial filing also requires credible evidence supporting the project’s overall feasibility and its ability to create the requisite ten full-time jobs for qualifying U.S. workers.
Upon approval of the form and following either visa issuance abroad or adjustment of status in the United States, the applicant is granted conditional permanent resident status for two years. During the 90 days before the conclusion of the conditional resident status period, the investor must file an I-829 petition to remove conditions.
WHAT ARE THE REQUIREMENTS FOR I-829 PETITION FILING?
The statutory and regulatory framework governing the adjudication of Form I-829 petitions sets forth clear and well-defined requirements that every EB-5 investor must meet to remove the conditions on permanent residence.
Under 8 C.F.R. § 216.6(a)(4), the petition must be supported by persuasive and verifiable evidence demonstrating that the investor either invested, or was actively in the process of investing, the full amount of required capital and that this investment was sustained throughout the entire period of the investor’s conditional permanent residence in the United States. In addition, the regulation requires proof that the investment directly resulted in the creation of at least ten full-time jobs for qualifying U.S. workers, or that such job creation can be reasonably expected to occur within a reasonable time.
Consistent with the regulations, the USCIS Policy Manual, Volume 6, Part G, Chapter 5, underscores that the primary focus at the I-829 petition stage is on confirming two critical elements:
- The capital investment was continually sustained during the conditional residence period.
- The requisite employment has been, or will be, created.
Together, these sources reflect a coherent legal framework that ties the investor’s eligibility for unconditional permanent residence to the maintenance of the investment and the achievement of the program’s central economic objective, meaningful job creation for the U.S. workforce. The Policy Manual contemplates that USCIS would revisit the source and path of funds (SPOF) or other I-526 petition issues only if “evidence of fraud, misrepresentation, or ineligibility” emerges.
I-829 PETITION DENIALS IN 2025
For years, EB-5 investors have understood that the final step in their immigration journey, filing the I-829, was primarily a review of whether the jobs had been created and the investment sustained. However, a new trend has emerged: USCIS is denying I-829 petitions based not only on the traditional grounds, including job creation shortfalls, early repayment, or failure to maintain the investment, but also on SPOF issues.
Even if USCIS examines them at the initial I-526/I-526E stage. From a legal and fairness perspective, revisiting SPOF at the I-829 petition stage is troubling for a few reasons: It undermines the finality of I-526/I-526E approvals; forces investors to re-document events and transactions that occurred many years earlier, often involving accounts, institutions, or records that no longer exist; and it undercuts the investor’s reasonable reliance on USCIS’s earlier determination.
WHAT HAPPENS TO THE INVESTOR AFTER A I-829 PETITION DENIAL
Under INA § 216A, codified at 8 U.S.C. § 1186b, the Secretary of Homeland Security “shall terminate” an alien investor’s conditional resident status if the investor’s I-829 petition is denied. However, the pertinent part of INA § 216A(c)(3)(C) provides that if USCIS determines it should deny an I-829 petition, it “shall so notify the alien involved and, subject to subparagraph (D), shall terminate the permanent resident status of an alien investor.” This subparagraph underscores that USCIS’s initial I-829 denial is not final because the foreign national “may request a review of such determination in a proceeding to remove the alien.”
The Ninth Circuit has also confirmed that permanent resident status remains valid “until a final deportation or removal order is entered.” Kyong Ho Shin v. Holder, 607 F.3d 1213, 1217 (9th Cir. 2010). 8 C.F.R. § 1001.1(p) also provides that “the term lawfully admitted for permanent residence means the status of having been lawfully accorded the privilege of [lawful permanent] residen[cy]… [until] such status terminates upon entry of a final order of…deportation”. In Matter of Lok, 18 I&N Dec. 101 (BIA 1981), the Board of Immigration Appeals clearly established that an LPR retains that status until a final administrative order of removal is entered. This occurs when the removal order becomes “administratively final” either after the BIA’s decision or after the period for filing a timely appeal has expired. The USCIS Policy Manual echoes this position, confirming that “an immigrant investor whose Form I-829 has been denied may seek review of the denial in removal proceedings,” and that “USCIS issues the immigrant a temporary Form I-551 until an order of removal becomes administratively final.”
This means that an investor whose I-829 is denied remains a lawful permanent resident for all legal purposes until the conclusion of removal proceedings.
The extension of this status throughout removal proceedings is critical, not only for maintaining rights and privileges such as work authorization and protection from unlawful presence accrual, but also for ensuring that the removal process itself affords the investor a full and fair opportunity to renew the I-829 petition before an immigration judge and to contest any adverse findings, including those related to source and path of funds. Further, if the immigration judge determines the investor should be removed, they remain a conditional permanent resident through review by the Board of Immigration Appeals.
Despite the citations above and the language in the USCIS Policy Manual, traveling internationally after an I-829 petition denial and NTA issuance is highly risky for investors. It may be treated as self-deportation and result in detention if they seek to return to the U.S. In addition, while work authorization should continue automatically as part of the investor’s legal permanent residence status, some employers may nevertheless be confused by the pending proceedings or the I-829 petition denial. This uncertainty can last for years, given immigration court backlogs.
WHAT TO EXPECT IN AN IMMIGRATION COURT
As EB-5 investors might find themselves before an immigration court appealing their I-829 denial, it’s important that they understand the key steps in the process:
Reversal of the burden of proof:
During USCIS adjudication of the I-829 petition, the burden of proving by a preponderance of the evidence that the request should be approved falls on the investor. However, when seeking review of an I-829 petition before an immigration judge, the regulations provide that the government has the burden of proof.
Master Calendar Hearing:
Shortly after the issuance of an NTA, the investor will be scheduled for a Master Calendar Hearing, which is essentially a procedural session before an immigration judge. At this hearing, the parties confirm the factual and legal posture of the case, and the judge will set deadlines for filing applications, evidence, and legal briefs, and will schedule the individual merits hearing at which testimony and exhibits will be presented.
The immigration judge will first ensure that the respondent, the EB-5 investor, has received and understands the allegations in the NTA, and will then request “pleadings,” which means that the petitioner admits or denies the factual allegations in the case and concedes or contests the charges of removability. At this stage, through counsel, the individual can indicate the forms of relief to be pursued, such as renewing the denied Form I-829 before the immigration judge.
One of the most important decisions for counsel at the Master Calendar Hearing is how to plead to the allegations in the NTA. Specifically, the notice will state that the investor is out of status when, in fact, the investor is still a conditional permanent resident (CPR). However, counsel may not wish to contest removability because doing so could result in termination of the proceedings, which will render the investor without any opportunity to seek review of the denied I-829 petition.
Cancellation of Removal:
INA § 240A (8 U.S.C. § 1229b) provides the remedy of cancellation of removal for a permanent resident in removal proceedings who has been a continuous resident in the United States for at least five years. Because of the dearth of previous I-829 petition cases in immigration court, there is virtually no law on the application of this provision to a conditional permanent resident. One of the main issues is the result of a grant of cancellation of removal.
However, does it simply cancel the removal proceedings, rendering the investor an eternal conditional permanent resident, or does it render the conditional permanent resident into a permanent resident, eligible to apply for naturalization?
It is also possible that the government will argue that INA § 240A (8 U.S.C. § 1229b) does not apply to conditional permanent residents or that the I-829 petition denial renders the foreign national no longer a conditional permanent resident. In any event, counsel needs to be aware that arguing for cancellation may result in the termination of proceedings and evaluate both whether the investor is eligible for cancellation and whether and how to request that relief.
Appeal:
As previously mentioned, if an immigration judge affirms the denial of an I-829 petition, the investor can appeal to the Board of Immigration Appeals. If the Board of Immigration Appeals denies, the investor can seek judicial review in the federal circuit court of appeals.
REVERSING AN I-829 IS POSSIBLE WITH THE RIGHT COUNSEL
The new wave of SPOF-based I-829 petition denials represents a significant shift in USCIS adjudication that places investors at risk even after they have fulfilled their job creation and sustainment obligations.
As the I-829 petition filing signifies the last step in a very long immigration journey, for EB-5 investors, the stakes are high. The moment an EB-5 investor receives a request for evidence, notice of intent to deny, or an NTA, they should consult with an experienced EB-5 immigration attorney.
A skilled advocate can challenge improper SPOF re-litigation or other alleged grounds for I-829 petition denial, preserve their rights in immigration court, and guide them through this critical stage of the EB-5 process.
EB5Investors.com Staff
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