I-829 Conditions Removal Denials
Note that it is very important to contact an experienced EB-5 attorney when you receive an RFE on I-829 case and not wait until USCIS actually issues a formal denial notice. You need to craft a well-reasoned RFE response with a future action in mind. We are well versed in evaluating the likelihood of your denied EB-5 case prevailing in an IJ removal proceedings or a federal court lawsuit and/or advising and representing denied EB-5 investors and their family members in RFE responses, I-829 denials, and IJ removal proceedings.
When it comes to an EB-5 case, even after an EB-5 investor obtains a conditional green card status, he or she has to be concerned about the possibility of I-829 denial, and there are too many key issues on which clear and practical guidelines or positions from USCIS are lacking, thereby not only impeding the growth of the EB-5 Program but causing many administrative and federal court lawsuits. In addition, USCIS has created additional immigration risks by its failure to clearly and reasonably define “material changes” AFTER I-526 approval which increases the immigration risks of EB-5 investors. Right now, many types of changes AFTER I-526 petition approval can be deemed by USCIS to amount to “material change” and therefore lead to a denial of I- 829.
In essence, there are two kinds of denials: lawful and unlawful ones. You would think that USCIS would give you a benefit of doubt when a foreign EB-5 investor invests $500,000 USD or more into a U.S. commercial enterprise and moves his family to the United States and spends additional amounts of money to help the U.S. economy by purchasing house, car and other assets, but no, that’s not how USCIS works. USCIS will deny your I-829 case unless you prove to their satisfaction that you met what USCIS believes are the requirements for the conditionals removal. Therefore, “reasonable” denials are those that an experienced EB-5 practitioner tells you that the I-829 requirements have not been met; and “unreasonable” denials are where a strong argument could be made that you met the I-829 requirements but The service center does not agree with your position EITHER because a good argument can be made that the USCIS examiner
misunderstood the I-829 requirements OR USCIS is denying the I-829 case based on one of its guidance memos which do not carry the effect of a binding law.
We are not kidding when we tell you that there are a plethora of key I-829 issues which are not at all clearly addressed by the current EB-5 statutes and/or regulations. This is not because The service center is out to “get” the I-829 petitioners — although many EB-5 practitioners feel that The service center could be more reasonable in their interpretations of many grey issues in the EB-5 law — but because the existing regulations are full of holes, and the way The service center is interpreting these unclear areas sometimes do not comport with commercial realities. Actually, EB-5 statute is written very broadly to allow I-829 investors-petitioners to meet the specific EB-5 requirements substantially and in good faith. [Sometimes I wonder whether USCIS pays attention to the “substantially and in good faith” phrase because I have never seen USCIS approve I-829 based on this phrase, just as I have never seen AAO disagree with USCIS’ decision.] Moreover, when you read USCIS issued guidance on EB-5 area, it says clearly that the guidance memos do not establish law and is not to be relied upon in litigation, etc. In other words, there are “huge” black holes in EB-5 law when it comes to I-829 issues — mainly because these issues have never arisen before.
Depending on the types of attitudes that prevail among the USCIS officials in charge of the EB-5 division, they can either choke the EB-5 Program or let it flourish. In our opinion, they are similar to Federal Reserve officials who must know when to tighten and when to loosen up their grips on EB-5 law and/or regional centers. USCIS has to be fair and reasonable in its administration of the EB-5 Program, especially because they are the one who had public hearings in 2003 encouraging people to form regional centers and telling everyone that they will be fair and reasonable.
In conclusion, it is crucial that you obtain proper advice from an experienced EB-5 practitioner when you receive Request For Evidence in connection with your I-829 petition. You need to do everything possible to properly analyze what The service center is asking and to be persuasive in your responses. Therefore, the worst thing you can do is to wait until The service center actually sends you a denial letter before retaining an experienced EB-5 practitioner.