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Could an I-829 application be denied if the residency requirement is not fulfilled?

I obtained my conditional green card through EB-5 but failed to fulfill the residency requirements. Now I am at the point of submitting my I-829 application. Could the I-829 be denied because of this? The project I invested in has created enough jobs as required. If denied, can I appeal the decision in court?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    To obtain I-829 approval, the petitioner must demonstrate that the investment in the NCE has been sustained and that the job-creation requirement has been met. There are no specific residency requirements for the I-829. It is possible, however, for extended absences of more than 180 days, for example, to cause USCIS to presume that the person has abandoned his or her lawful permanent residency in the United States. You should speak with an immigration attorney if you have concerns about extended absences from the United States.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is possible that USCIS could claim you had abandoned your residency, but we do not see this very often. You can usually appeal if you have a basis.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    There could be an issue of abandonment of permanent residency raised, but it is possible to refute if you had not filed for a re-entry permit prior to your prolonged absence from the U.S.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You may have already abandoned your residency. You need to discuss the specific timelines and circumstances with an attorney.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    To be honest, hard to tell. You might or you might not get denied. Hopefully, your I-829 will be reviewed by a compassionate officer who will overlook the fact that you have not been in the U.S. after the conditional green card was approved. If you get denied, though, by all means have your attorney argue your case to reverse the decision.

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    Charles Foster

    Immigration Attorney
    Answered on

    Your I-829 petition would not be denied over a lack of physical presence, but a CBP inspector at the port of entry could find that you had abandoned your residency.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, it can be denied. Every I-829 applicant is supposed to meet residency requirements and unless you have an I-131 permit that allows you to stay outside the country, it may be deemed that you have not met the requirements.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    USCIS has been denying I-829 if investors have spent too much time outside of the U.S. without a proper I-131 (re-entry permit) approved. Since the conditional residency, like permanent residency, is intended for immigrants to reside permanently in the U.S. If you did not, then USCIS may consider your residency abandoned and deny the I-829, which your attorney could ask for reconsideration and appeal. If that is not successful and you receive a NTA for the removal proceeding, fight it at that level.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    It could be denied for abandonment, but this is fairly rare. Had one case of it in the past and we won at the NOID stage. Your attorney will be able to advise you.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If the green card is deemed to be abandoned then there are no conditions to remove, so I recommend coming to the U.S. ASAP and getting this resolved.

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