I-829 Denials and Appeals: Options If Conditions Aren’t Removed

When an investor's Form I-829 petition to remove conditions on their permanent residency is denied, the situation can be stressful. This denial often occurs because the U.S. Citizenship and Immigration Services (USCIS) determines that the required job creation or capital investment conditions were not met within the stipulated two-year conditional period. Understanding the available options, primarily filing an appeal or seeking a waiver, is crucial for navigating this complex legal landscape.

Understanding the I-829 Denial

A denial notice from USCIS will specify the exact reasons for the rejection. Common grounds for denial include:

• Failure to create the required number of qualifying jobs.
• Insufficient sustained capital investment by the deadline.
• Issues with the source of the invested funds.
• Inability to demonstrate that the investment is "at risk."

Reviewing the denial reason carefully is the first step toward formulating an effective response strategy.

Option 1: Filing an Appeal (Form I-290B)

If you believe the denial was based on an error of law or fact by the USCIS officer, the primary recourse is filing a Notice of Appeal (Form I-290B) with the Administrative Appeals Office (AAO).

Key considerations for filing an appeal:

1. Strict Deadlines: Appeals must generally be filed within 30 days of the denial notice date. Missing this deadline is usually fatal to the appeal.
2. Grounds for Appeal: The appeal must clearly articulate why the denial was incorrect, citing specific evidence that was overlooked or misapplied by the adjudicating officer.
3. Required Documentation: You must submit the original denial notice, the appeal form, and a comprehensive brief supporting your case.

Appeals focus on correcting errors made during the initial adjudication, whereas waivers address changed circumstances or ongoing compliance issues.

Option 2: Filing a Motion to Reopen or Reconsider

In certain situations, instead of a full appeal, filing a motion might be appropriate:

• Motion to Reopen: Used when new material evidence is available that was not presented in the original I-829 filing.
• Motion to Reconsider: Used when the denial was based on an incorrect application of law or policy to the facts already presented.

These motions are typically filed directly with the office that issued the denial, and they also have strict filing timelines, usually 30 days.

Option 3: Seeking a Waiver of the Conditions (If Applicable)

If the failure to meet conditions is due to circumstances outside the investor's control, or if the project is near completion but requires more time, a waiver might be sought, although this is less common post-denial unless the denial was based on a technicality that a waiver could cure.

Waiver categories often relate to:

1. Good Faith and Hardship: Demonstrating that the investor acted in good faith but unforeseen economic conditions prevented job creation.
2. Unforeseen Circumstances: Situations like natural disasters or severe economic downturns impacting the commercial enterprise.

Note: Waivers are often more successfully pursued before a final denial, but they can sometimes be incorporated into a motion to reopen if new evidence supports the waiver criteria.

The Importance of Legal Counsel

Navigating an I-829 denial is highly complex, involving strict administrative procedures and high stakes for the investor's immigration status. It is strongly recommended that anyone facing denial immediately retain experienced EB-5 legal counsel.

An attorney can:

• Accurately assess the grounds for denial.
• Determine whether an appeal or a motion is the most viable path.
• Prepare detailed legal briefs that address USCIS policy and precedent.

Failure to act promptly or correctly can result in the loss of permanent residency status and potential removal proceedings. The strategy must be tailored to the specific facts cited in the denial letter, such as proving that $1,050,000 was indeed invested and sustained.

Conclusion

An I-829 denial is not the end of the road, but it requires immediate, strategic action. Whether pursuing an appeal based on factual error or filing a motion to introduce new evidence, timing and thorough documentation are paramount. Consulting an immigration attorney specializing in EB-5 matters is the most critical step following a denial notification.