Denied and Detained: A Significant I-829 Renewal Win for EB-5 Investor

Prior to 2025, the renewal of an I-829 before an immigration judge was extremely rare for two reasons:

1. There were far fewer I-829 denials than there are at present; and
2. It was extremely rare that USCIS would issue a Notice to Appear (NTA) to a conditional permanent resident with a denied I-829.

Two significant changes occurred in 2025:

1. USCIS has been denying far more I-829 petitions, including, for the first time, regularly denying I-829 petitions based on a reexamination of the previously-approved source of funds; and
2. USCIS issued a new Policy Memorandum stating that all I-829 denials should be followed by NTAs, which initiate removal proceedings before an immigration judge, with very limited exceptions

In response to the need created by the large numbers of EB-5 investors finding themselves in removal proceedings, during which they can renew their I-829 petitions with an immigration judge, Klasko Immigration Law Partners created a seven-lawyer I-829 NTA team.

Winning an I-829 Renewal in Immigration Court

The first contested immigration judge hearing prosecuted by the Klasko I-829 NTA team — and one of the first ever in the country — resulted in an immigration judge approving the investor’s previously-denied I-829 petition. The case involved a number of novel legal issues that have significance far beyond this case:

1. The case highlighted the importance of vigorous legal advocacy, a scrupulous review of the evidence and law, and the striking impact that thoughtful witness testimony has on an immigration judge’s decision-making.
2. The immigration judge agreed that the government has the burden of proof in I-829 renewals and failed to meet its burden of proof.
3. The immigration judge deferred ruling on a motion to subpoena the USCIS examiner who issued the denial decision, but indicated that the appearance of such a witness might be necessary in order for the government to meet its burden of proof.
4. Although the government produced a lengthy USCIS fraud report, after four witnesses presented by the foreign national rebutted the fraud finding, the immigration judge ruled that the government had not met its burden of proof on the fraud issue.
5. The immigration judge ruled that the foreign national had been incorrectly detained because she was not an “arriving alien.” She should not have been required to be detained, as the government had not demonstrated any criteria that would make a conditional permanent resident need to apply for admission at the border. Importantly, in this case, she had departed the United States prior to the government issuing her NTA.
6. The investor was 1 of 24 investors in the same project. All of the investors have denied I-829 petitions. We are attempting to avoid having all 24 investors go through the same process, and 24 different immigration judges having to issue rulings on the same set of facts.
7. The immigration judge granted our motion for a pre-hearing conference during which we were able to raise some of the unique issues involved in I-829 renewals that virtually no immigration judge had to deal with previously.
8. A pre-hearing brief outlining the legal issues proved very useful in framing the issues for the judge.
9. The immigration judge was interested in using our work in the court case to educate immigration judges all over the country about how to best proceed in I-829 renewal cases.

Looking Ahead

There are many challenges that our EB-5 clients face when they are confronted with denied I-829 petitions. For one, EB-5 clients with a denied I-829 should seek legal advice before making any international travel decisions. Generally speaking, for an EB-5 client, departing the United States after receiving an NTA places the individual at a high risk of prolonged detention when arriving back in the United States.  

However, with patience, our success in this case offers hope to foreign nationals caught in this precarious situation that, if they have a meritorious case, they can still get their conditions removed and ultimately become naturalized citizens of the United States.

If you have any questions or concerns, please reach out to the Litigation Team at Klasko Immigration Law Partners.

The material contained in this alert does not constitute direct legal advice and is for informational purposes only. An attorney-client relationship is not presumed or intended by receipt or review of this presentation. The information provided should never replace informed counsel when specific immigration-related guidance is needed.

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