We have previously discussed the coalescence of government policies that has resulted in the unprecedented influx of EB-5 I-829 petitioners receiving I-829 denials and notices to appear (NTAs) in immigration court. These factors include:
- Routine re-adjudication of the source of funds that had previously been approved at the I-526 stage
- Increase in project-related denials of I-829s
- Trump executive order in early 2025 stating that I-829 denials should result in the prompt issuance of NTAs (prior to that executive order, NTAs were very rarely issued when an I-829 was denied).
Although the issuance of an NTA and the initiation of removal proceedings before an immigration judge are intimidating to the client and restrict international travel, there is one major benefit. Specifically, it enables the investor to obtain a de novo review of the I-829 in a proceeding in which the government (uniquely) has the burden of proof. Our firm has a group of 7 lawyers working with an ever-increasing number of families who find themselves in this predicament.
These cases are difficult because most immigration judges have never dealt with an I-829 (or even EB-5) issue. It is critical to educate the immigration judge on all of the relevant, and often complex, issues. It can also be difficult to overcome the skepticism of the immigration judge that the government really has the burden of proof, or what that means.
I am pleased to announce that we have now had three of these cases decided by three different immigration judges, and in all three cases, we were successful in obtaining I-829 approvals for the investors.
Win 1: Government Filed No Evidence and Failed to Meet Its Burden
The most recent case, decided in January 2026, was a case in which USCIS denied the I-829 based on lack of sustainment and lack of necessary job creation. The immigration judge agreed that the government had the burden of proof. The government produced the Notice of Intent to Deny and the denial decision for the I-829. We argued that the government did not meet its burden of proof by simply providing the denial. The immigration judge agreed that we did not have to put on any evidence because the government did not meet its burden of proof. Consequently, the immigration judge approved the I-829.
Win 2: Government Concedes Rather Than Producing a Witness
In another case, involving diversion of funds through no fault of the investor, USCIS denied the I-829 for lack of job creation. Again, the government argued that it did not need to put on any evidence other than its denial of the I-829. We took the position that, if the judge was going to agree that the denial decision itself was sufficient to meet the government’s burden of proof, we had the right to cross-examine the adjudicator who issued the decision, as well as the head of IPO, to the extent the decision reflected IPO policy. After DHS requested multiple continuances because of the unavailability of the IPO witnesses, the immigration judge set one final hearing date. The day before the hearing, USCIS withdrew its opposition to the I-829, rather than producing an officer to be cross-examined, which resulted in the immigration judge’s approval of the I-829.
Win 3: Our Evidence Rebutted the Government on the Merits
The third case was widely reported and the subject of a previous blog. In that case, the government introduced as evidence a fraud report from FDNS with substantial redactions. Without initially deciding whether the government had met its burden of proof, the immigration judge required us to put on our evidence, after which she would decide if the government had met its burden of proof. We produced four witnesses who confirmed that there was no fraud and that all of the investment funds went to the JCE to build the building as specified in the business plan. Based on the evidence and testimony produced, the immigration judge approved the I-829. The immigration judge found that the government had failed to meet its burden, and even if assuming for the sake of argument that the government had met its burden, our evidence rebutted the government on every issue.
Looking Ahead
Although denial of an I-829 and issuance of an NTA are life-disrupting to our investor clients, hopefully these success stories will give some hope to investors in this predicament that the goal of full permanent residence status and ultimately U.S. citizenship is merely delayed — not forever denied.
If you need assistance responding to a Notice to Appear, navigating an I-829 denial, or would like to learn more about our trailblazing Immigration Litigation services, please reach out to a member of the Klasko Immigration Litigation 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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