Consequences of I-829 Denial: Losing Your Residency?

The denial of an I-829 petition, the final step in the EB-5 Immigrant Investor Program, carries significant and often immediate consequences, most notably regarding the applicant's lawful permanent resident status. Understanding these ramifications is crucial for investors navigating the complexities of U.S. immigration law.

Immediate Impact on Conditional Residency

An I-829 denial effectively terminates the conditional permanent residency granted two years prior. The legal status of the investor and their dependents reverts to the status they held immediately before the I-526 approval.

Reversion to Previous Status

If the investor was admitted to the U.S. on a different visa (e.g., B-2 visitor, F-1 student) before obtaining conditional residency, their status reverts to that original classification. If the original visa has expired, the investor is technically out of status.

• If status is valid: The investor must adhere strictly to the terms of their prior non-immigrant visa.
• If status has expired: The investor is unlawfully present, triggering severe future inadmissibility bars.

The Path to Removal Proceedings

Denial of the I-829 is a primary trigger for the commencement of removal (deportation) proceedings. U.S. Citizenship and Immigration Services (USCIS) will typically issue a Notice to Appear (NTA).

Consequences of Being Placed in Removal Proceedings

Once placed in removal proceedings, the investor loses control over their immigration timeline and must defend their right to remain in the U.S. before an Immigration Judge (IJ).

Failure to successfully demonstrate compliance with all I-829 requirements before the IJ can result in a final order of removal.

Options After I-829 Denial

While denial is serious, it is not always the end of the road. Investors have limited, but important, avenues for recourse.

1. Motion to Reopen or Reconsider (MTR)

This is the initial administrative step, filed directly with USCIS. It must be based on new facts or a clear legal error in the original decision.

The grounds for an MTR often focus on:

1. Errors in calculating the required job creation numbers.
2. Evidence that the required capital was irrevocably committed, even if not fully dispersed.
3. Demonstrating that the delay was due to circumstances outside the investor's control.

2. Appeal to the Board of Immigration Appeals (BIA)

If the MTR is denied, or if the denial was based on factual findings, the next step is appealing to the BIA. This is a formal legal proceeding where the investor argues that the USCIS officer made an error of law or abused their discretion.

3. Filing a New Petition (Rarely Applicable)

In very specific circumstances, such as a denial based on technical deficiencies that can now be cured, filing a new I-829 might be considered, though this is procedurally complex and usually only viable if the denial was without prejudice.

Impact on Derivative Family Members

The consequences extend to the investor's spouse and unmarried children under 21 who derived their status from the I-829 petition.

If the principal investor’s I-829 is denied, the derivatives’ conditional residency is also terminated. If the derivative family members have separate pending I-829 applications, those will also be denied based on the principal’s ineligibility.

Crucially: If a derivative child turns 21 before the I-829 decision, they age out and lose their eligibility for residency entirely, even if the investor’s petition is later approved.

Conclusion: The Need for Immediate Legal Counsel

Losing conditional residency due to an I-829 denial places the investor in a precarious immigration position. The timelines for filing motions and appeals are extremely short. Immediate consultation with an experienced immigration attorney specializing in EB-5 litigation is paramount to assessing the viability of an MTR or appeal and preventing removal proceedings from escalating.