I have published multiple blogs on the subject of I-829 denials and review in immigration court. I have reported on our successful cases.
However, sometimes, such as in the complete failure of a project, there may be minimal or no chance of success in seeking review of the I-829 before the immigration judge. In those cases, we discuss with our clients three strategies that I will outline in this blog:
- File another EB-5 or other immigrant petition
For some clients with especially difficult I-829 denials, we are able to advise the client that it may be years until their merits hearing with the immigration judge (our latest hearing is scheduled for 2029). It is our position that, under the law, the client remains a conditional permanent resident throughout the process.
This delay gives the client plenty of time to file another immigrant petition. That petition may be based on a qualified family member, an employer, or the extraordinary ability or national interest of the client. If none of those options exists, another EB-5 petition (or even a gold card application) may be the best solution.
The process can be tricky, but generally requires the new EB-5 (or other) petition to be filed and approved, after which the client can relinquish his previous, challenged conditional residence status and file for new residence status with the immigration judge. The application requires counsel who is familiar with the interplay between INA 245 (c)(7), INA 245(d), INA 245(K), and Matter of Stockwell. We have navigated this treacherous path successfully on a number of occasions. - Permanent Resident Cancellation of Removal
Even if the immigration judge denies the I-829, they can approve a cancellation of removal application under INA 242. This requires that the investor has been a permanent resident for 5 years and has resided in the US for 7 years.
Although we suggest filing this application in every case where the client qualifies, there are 2 legal issues that are unresolved and will ultimately require federal court clarification:- Does this INA section apply to conditional permanent residents or only lawful permanent residents without condition
- Does cancellation of removal merely terminate the removal proceedings, leaving the investor a conditional permanent resident, or does it result in the CPR becoming an LPR?
- Realistically Assess the I-829 and Alternatives
Investors with conditional residence whose I-829s are denied need a holistic assessment of their options. Once an I-829 is denied and is before an immigration judge, the investor needs to understand the chances of success not only of the I-829 but also of the other options set out above for remaining in the United States. Investors also need to understand the timeframes involved in a removal proceeding, as well as practical impacts for the investor and other family members, their ability to travel internationally, schooling, and employment.
Investors should also consider backup options in the event that remaining in the United States is not possible. There are at least eight countries in which investors can invest, starting at $130,000, to obtain full citizenship and a passport. There are far more countries in which residence by investment is available. These countries span the globe from the Caribbean to Central America to Europe to the Middle East and to Asia. Some of the most popular countries can take 1 to 2 years or more for the process to be completed. Others can be completed in 3 or 4 months.
The Klasko Immigration EB-5 Team’s advice includes complete assessment and planning for alternatives, including connecting clients with resources to determine viable alternative countries of residence as part of our work with clients facing removal proceedings.
Obtaining an I-829 denial and being issued an NTA is not a pleasant experience. However, with proper planning and knowledgeable and creative counsel, investors may be able to navigate among several different options to achieve their goals.
If you need assistance responding to a Notice to Appear, navigating an I-829 denial, or would like to learn more about alternative strategies, please reach out to a member of our Immigration Litigation Team, our Investor Team, or request a consultation here.
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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