A New Era of I-829 Denials: What to Expect in Immigration Courts
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.
By Jessica DeNisi
R ecently, 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 an 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
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