A NEW ERA OF I-829 DENIALS: WHAT TO EXPECT IN IMMIGRATION COURT— BY JESSICA DENISI
2) 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).
The investor with a denied I-829 remains a lawful permanent resident for all legal purposes until the conclusion of removal proceedings
Traveling internationally after an I-829 petition denial and NTA issuance is highly risky for investors
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 the investor with a denied I-829 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
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