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to make an entirely independent decision on the investor’s I-829
petition, federal district court judges are generally limited to
reviewing the record (i.e., the documents and information) that
was submitted to USCIS along with the I-829 petition, including
any responses to requests for evidence and/or notice(s) to intent
to deny. Nevertheless, we have found that in certain circumstances, bringing a lawsuit in federal court provides the best avenue
for achieving successful outcomes for investors – particularly
in the Regional Center context, where USCIS denies multiple
I-829 petitions in the same project. Finally, federal litigation, as
well as administrative litigation in Immigration Court, allows
experienced litigators to negotiate with government attorneys for
a mutually agreeable settlement based on specific circumstances.
Administrative Appeals Office
Certification and/or Motion to Reopen
and/or Reconsider with USCIS
Finally, in some cases, USCIS has certified the denial of the
I-829 for review (appeal) to the Administrative Appeals Office.
While the investor does not have a right to file an appeal with
the AAO, the government does have the right to certify or ask
the AAO to review denials of an I-829. To date, the AAO has
uniformly affirmed USCIS denials of I-829s. The fact that the
AAO has affirmed the denial of the I-829 petition, however,
does not mean that the investor has no additional remedies and
would not preclude an action in federal court and/or litigation
in removal proceedings, if applicable. Additionally, the investor
may file a motion to reopen and/or reconsider the denial of the
I-829 petition with USCIS; however, such procedures must be
specifically calculated to create and supplement a better record
for federal court review and/or renewal of the I-829 petition in
removal proceedings, rather than simply allow USCIS to cure
defects in an earlier denial decision.
Conclusion
USCIS’s denial of an I-829 petition can have a devastating
effect on EB-5 investors. After emigrating from their home
countries and building a new life in the United States, investors
may face the fear of being placed in removal or deportation
proceedings before an immigration judge, where they must fight
for their right to stay in the United States. Fortunately, investors
have a real chance to preserve their residency if they can present
their cases appropriately and prove that their renewed I-829 petition should be approved. They may also seek federal court review
and seek an order from a federal judge that USCIS’s decision
to deny the I-829 petition was incorrect. These two procedures
give an experienced immigration attorney a fresh chance to win
the investor’s case or potentially negotiate an agreement with the
government. When it comes to I-829 petitions, USCIS’s denial
is not the final word. Armed with an experienced attorney, the
law provides investors with a meaningful chance to win their
unconditional permanent residency and the right to reside and
live in the United States permanently.
★
John Patrick Pratt
Helena Tetzeli
John Patrick Pratt is a Partner at Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., in Miami,
Florida. Mr. Pratt received his BA degree from
Florida State University and his juris doctor
degree Tulane University School of Law. Mr.
Pratt is AV Rated by Martindale-Hubbell, and
is Florida Bar Board Certified in Immigration
& Nationality Law 2005-2015. He concentrates
in all areas of immigration and nationality law,
including corporate immigration matters, employment based immigrant
and nonimmigrant petitions,
deportation or removal defense in EB-5 and all other
contexts, and federal court
litigation, including complex
EB-5 related matters.
Edward Ramos is an associate with the Miami
firm Kurzban, Kurzban, Weinger, Tetzeli &
Pratt, P.A. He obtained his J.D. from Yale Law
School in 2012. His practice
concentrates on litigation
bef