Recent reports indicate that Notices to Appear (NTAs) are now being issued much more quickly, presumably due to policy shifts under the current administration. EB-5 investors should be aware that they have a statutory right to seek review of their denied I-829 petition in removal proceedings in the United States, under the Immigration and Nationality Act (8 U.S.C. § 1186b(b)(2)).
Previously, it was uncommon for NTAs to be issued immediately after an I-829 denial. EB-5 investors often waited years—if ever—to receive an NTA following their I-829 denial.
Many investors with denied I-829 petitions still possess I-829 receipt notices that automatically extend their conditional permanent resident (CPR) status for 48 months beyond the expiration date of their CPR. However, investors in this situation should avoid traveling with only the I-829 receipt notice, as the denial record in the system may prevent them from boarding a flight or re-entering the U.S. Instead, denied investors should visit a local USCIS office to obtain a valid I-551 stamp if they must travel internationally.
There are longstanding regulations and case law that provide that an immigrant investor and his or her dependents remain permanent residents of the United States, despite I-829 petition denial, until a final determination is made by an immigration judge, if at all. See e.g., 18 I&N Dec. 101, 105, 106 (BIA 1981) (the lawful permanent resident status of an alien ends “with the entry of a final administrative order of deportation…” “It is established that the mere occurrence of an act or event which provides a basis for an alien’s deportation does not in itself cause the Alien’s status as a lawful permanent resident to change…”); , Int. Dec. 22 I&N Dec. 3383 (1999) (“The Service has recognized the proposition that although an alien’s conditional resident status has been terminated, such alien retains temporary status during the pendency of review in proceedings to remove the alien.”); Etuk v. Slattery, 936 F.2d 1443 (2d Cir. 1991). See also 8 C.F.R. § 264.5(g).
Published USCIS policy guidance also clearly states that, despite the I-829 petition denial, an immigrant investor and his or her dependents can continue to obtain I-551 stamps as evidence of their ongoing status. See 6 USCIS-PM, Pt. G, Chapter 7, Section D.
There have been recent reports that individuals traveling on an I-551 stamp while an NTA is pending were prevented from returning to the U.S. or faced detention upon re-entry to the U.S. Individuals in this situation should exercise extreme caution, consider if their travel is essential, and seek legal advice before travelling.
If you have any questions or concerns about the content of this alert, please contact one of our EB-5 immigration attorneys.
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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