Another Failure by the EB-5 Immigrant Investor Program Office

Dec 20, 2021 | Investor Visas

Obtaining a temporary green card stamp (also known as an ADIT-stamp or a Form I-551) is a legal right for immigrant investors with a denied Form I-829 until an immigration judge enters a final order of removal, and any administrative appeals have been completed.  Yet, for no apparent reason, USCIS’ EB-5 Immigrant Investor Program Office has failed to direct local USCIS offices to follow the law, creating severe problems for those waiting the issuance of a Notice to Appear or resolution of removal proceedings.  USCIS’ Policy Manual states:

An immigrant investor whose Form I-829 has been denied may seek review of the denial in removal proceedings. USCIS issues the immigrant a temporary Form I-551 until an order of removal becomes administratively final. An order of removal is administratively final if the decision is not appealed or, if appealed, when the appeal is dismissed by the Board of Immigration Appeals.

(emphasis added).  This is consistent with case from the Board of Immigration Appeals (“BIA”) – the highest administrative body for interpreting and applying immigration law – in Matter of Lok, 18 I&N Dec. 101, 105 (BIA 1981), which held that the lawful permanent resident status of a foreign national terminates only with the entry of a final administrative order of deportation, i.e. when the BIA renders its decision in the case upon appeal or certification or, where no appeal to the BIA is taken, when appeal is waived or the time allotted for appeal expires. 

Not only is USCIS’ failure to issue I-551 stamps in these situations legal error, but it also causes immigrant investors to violate another section of the Immigration and Nationality Act, section 264(e), which states:

Personal possession of registration or receipt card; penalties.  Every alien, eighteen years of age and over, shall at all times carry with him and have in his personal possession any certificate of alien registration or alien registration receipt card issued to him pursuant to subsection (d). Any alien who fails to comply with the provisions of this subsection shall be guilty of a misdemeanor and shall upon conviction for each offense be fined not to exceed $100 or be imprisoned not more than thirty days, or both.

Despite this clear guidance, settled case law, and possible criminal violations, there are numerous reports that local USCIS offices are refusing to issue I-551 stamps to an immigrant investor and his/her derivative beneficiaries when the Form I-829 has been denied.   USCIS’ EB-5 Immigrant Investor Program Office should direct all USCIS offices to know, understand, and follow the law.    

In these situations, it is advisable for an experienced attorney to attend the Infopass appointment with the immigrant investor and family members.  To make things more difficult, even getting an Infopass appointment scheduled for this reason has become a challenge.  If you are seeking assistance, please contact a WR Immigration attorney.

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