EB-5 Webinar | I-829 Denials

This is the transcript version of our EB-5 webinar discussing I-829 denials. Join our Immigration News Digest Newsletter for more immigration updates.

By Joey Barnett, Angelica Rice and Phillip Kuck.

🎧 Available on YouTube & Spotify

In this EB-5 webinar, WR Immigration Partner Joey Barnett is joined by WR associates Angelica Rice and Phillip Kuck to discuss EB-5 I-829 denials and the options available to investors facing removal proceedings. They examine the increasing number of I-829 denials, the reasons behind them, and how investors can challenge adverse decisions and protect their permanent residency.

1. Understanding I-829 Denials and Removal Proceedings

I-829 denials are becoming an increasing concern for EB-5 investors. To help clarify some of the terminology used throughout the discussion, the attorneys explain several key terms and their significance in the I-829 denial and removal proceedings process:

• I-829 Denial: USCIS notifies the investor that their petition has been denied and explains the available options.
• Notice to Appear (NTA): The government files a charging document with the immigration court, formally commencing removal proceedings.
• Master Calendar Hearing: The initial procedural hearing before an immigration judge.
• Immigration Judge (IJ): The judge responsible for presiding over removal proceedings and reviewing the investor’s case.
• Board of Immigration Appeals (BIA): The appellate body that can review decisions made by immigration judges.

The timing between an I-829 denial and the issuance of an NTA varies. It may take weeks, months, or longer. The attorneys explain that recent cases have seen NTAs issued relatively quickly following denials.

Importantly, receiving an NTA does not mean deportation is imminent. It is the beginning of the removal proceedings process, during which investors have an opportunity to present their case.

2. Understanding I-829 Denials

The attorneys discuss several reasons USCIS may deny an I-829 petition, including:

• Failure to demonstrate job creation.
• Insufficient evidence showing how investment funds were spent.
• Issues involving the sustainment of investment.
• Source of funds and currency transfer concerns.
• National security concerns.

The attorneys emphasize the importance of understanding the specific factual and legal allegations behind each denial. The reason for denial will influence the available legal strategies, the evidence required, and how the case should be presented in immigration court.

3. The Importance of Building a Strong Evidentiary Record

Investors preparing to file their I-829 petitions should proactively obtain documentation from their regional centers. This includes:

• Evidence of job creation and economic model inputs.
• Documentation showing how investment funds moved from the new commercial enterprise (NCE) to the job creating entity (JCE).
• Bank statements and expenditure records showing how funds were used.
• Copies of relevant regional center reporting, including Form I-956G.

Joey explains that regional centers should maintain documentation supporting their annual reporting obligations. Investors should request relevant records early rather than waiting until USCIS issues a request for evidence or denies their petition.

The attorneys also discuss national security concerns and the importance of challenging inaccurate factual allegations. Evidence may include personal declarations, employment and educational histories, expert witness reports, and documentation establishing the historical context of an investor’s activities or affiliations.

4. Motions to Reopen and Reconsider

Following an I-829 denial, investors may have the opportunity to file a Motion to Reopen (MTR), a Motion to Reconsider, or both. The attorneys explain the key differences:

• Motion to Reopen: Introduces new, material evidence that was not previously considered and could affect the outcome.
• Motion to Reconsider: Argues that USCIS made an error in applying the law or interpreting the facts already in the record.

Filing both motions can allow investors to present additional evidence alongside legal arguments challenging the denial.

Joey and the attorneys emphasize that these motions serve another important purpose: preserving the evidentiary record for potential immigration court proceedings.

However, investors must pay close attention to filing deadlines for MTRs, which are generally 30 days, with an additional three days in certain circumstances involving service by mail.

Filing a motion does not prevent the government from issuing an NTA. If an NTA is issued while a motion remains pending, the case may proceed in immigration court without waiting for USCIS to decide the motion.

5. Federal Litigation and Unreasonable Delays

The attorneys also discuss federal litigation as another potential strategy following an I-829 denial.

An Administrative Procedure Act (APA) challenge may be available when USCIS has made an arbitrary or capricious decision, abused its discretion, or otherwise acted contrary to law.

However, jurisdiction is an important consideration. If an NTA has already been issued, a federal court may determine that the immigration court is the appropriate forum to review the I-829 application.

Joey also discusses unreasonable delay lawsuits, including mandamus actions, which seek to compel USCIS to adjudicate a pending petition.

Importantly, a mandamus lawsuit seeks an adjudication, not necessarily an approval. The attorneys also address concerns that filing federal litigation could lead to retaliatory action by USCIS, noting that such action would be improper.

6. De Novo Review: A Fresh Opportunity in Immigration Court

One of the most important aspects of EB-5 removal proceedings is the opportunity for de novo review.

De novo review means the immigration judge considers the I-829 application anew (with “fresh eyes”) and reviews the record in totality, rather than simply reviewing whether USCIS made the correct decision.

This provides investors with an opportunity to submit:

• New and supplemental evidence.
• Additional source of funds documentation.
• Updated evidence of job creation and investment sustainment.
• Expert reports and personal declarations.
• Legal arguments challenging the original denial.

Angelica explains that the immigration judge can consider the complete record, including evidence submitted previously to USCIS and new evidence introduced during court proceedings.

The attorneys also highlight an important distinction involving the burden of proof. Depending on the grounds for denial and the allegations in the removal proceedings, the government may bear the burden of establishing that the investor is not eligible.

Phil emphasizes that this can be a significant advantage for EB-5 investors, particularly when the government fails to present sufficient evidence supporting its allegations.

The attorneys share an example of successfully representing investors whose I-829 petitions had previously been denied. Despite multiple unsuccessful motions and a further motion still pending, they were able to obtain approval through de novo review in immigration court.

7. Cancellation of Removal as an Alternative

For certain investors, cancellation of removal may provide another potential path to permanent residency.

The attorneys focus on LPR cancellation of removal, commonly referred to as 42A.

To qualify, an investor generally must demonstrate:

• At least five years as a lawful permanent resident. Conditional permanent residence counts toward this requirement.
• At least seven years of continuous residence in the United States after admission in any status.

Phil explains that these requirements must be carefully evaluated because even being a few days short of the continuous residence requirement could affect eligibility.

The attorneys emphasize that cancellation of removal is an alternative form of relief, only available in immigration court, not a substitute for pursuing de novo review of the I-829 application.

Where appropriate, investors may pursue both forms of relief, allowing the immigration judge to consider alternative options depending on the circumstances.

8. Frequently Asked Questions: Maintaining Status, Working and Traveling

The attorneys address several important questions from EB-5 investors facing I-829 denials.

Do investors have to leave the United States immediately after an I-829 denial?
Not necessarily. Investors may have options to challenge the denial, including filing motions and defending their case in immigration court.

Can investors continue working?
The attorneys explain that an I-829 denial does not automatically mean an immigration judge has terminated the investor’s permanent resident status. Investors may be able to obtain an I-551 stamp from USCIS to continue documenting their status and employment authorization.

Can investors travel internationally?
The attorneys strongly caution against international travel following an I-829 denial. Even with an I-551 stamp, investors may encounter difficulties returning to the United States, particularly if an NTA is issued while they are abroad.

How can investors prove their status?
Investors may request an appointment with USCIS to obtain an I-551 stamp in their passport, which can serve as evidence of their continued status.

Can children continue attending school?
The attorneys explain that children can generally continue attending school, including college, while their immigration proceedings are pending.

The attorneys stress that each situation is different and that investors should obtain legal advice before making decisions involving employment, travel, or their immigration status.

Final Takeaways

An I-829 denial does not necessarily mean the end of an investor’s EB-5 journey. There may be several options available, including motions to reopen and reconsider, federal litigation, de novo review in immigration court, and alternative forms of relief.

Joey, Angelica and Phillip emphasize the importance of acting quickly after a denial, reviewing the original I-829 filing, gathering supporting documentation, and understanding the legal and procedural options available.

With more EB-5 investors reaching the I-829 adjudication stage, understanding how to respond to a denial and navigate potential removal proceedings is increasingly important for investors and their families.

About the Authors

Joey Barnett is a partner at WR Immigration and a member of the firm’s EB-5 and Business Immigration practices. He has extensive experience representing immigrant investors seeking U.S. permanent residency through Regional Centers and direct investments, as well as advising businesses and developers on EB-5 Regional Center projects. He serves on AILA’s EB-5 Committee and IIUSA’s Editorial Board. Recognized as a Top 25 Immigration Attorney by EB-5 Magazine from 2023 to 2025, he was also named a Top 5 Rising Star in EB-5 in 2019 and selected for inclusion in The Best Lawyers in America® in 2023. Joey also co-hosts our monthly Chatting with Charlie: EB-5 Investor Outlook webinar series alongside Charlie Oppenheim, providing insights into visa availability, Visa Bulletin developments, and their implications for EB-5 investors.

Angelica Rice is an attorney at WR Immigration with experience in business immigration, litigation, and removal defense. She previously served as an Assistant Chief Counsel with the Department of Homeland Security (DHS/ICE) in Los Angeles, where she litigated hundreds of cases before immigration courts. In private practice, she handles all manner of complex litigation cases and employment-based petitions including EB-5, EB-2 NIW, EB-1A, and O-1. She was recently selected for inclusion in the 2027 edition of The Best Lawyers in America®in the Ones to Watch awards category and served as a Speaker/Panelist at the 39^th Annual AILA CA Chapters Conference. She is a member of The Florida Bar and earned her Juris Doctor from St. Thomas University School of Law after graduating cum laude from the University of Florida.

Phillip Kuck is an attorney at WR Immigration specializing in EB-5 investment immigration, federal litigation, and removal defense. He represents investors throughout the EB-5 process, including I-526E and I-829 petitions, adjustment of status, and immigration court proceedings. He received the ACLU of Utah’s prestigious Mickey Duncan Award for his work protecting immigrants’ rights in federal court and serves as Chair of the Utah Chapter of the American Immigration Lawyers Association (AILA). He graduated magna cum laude from Georgia State University College of Law and speaks Mandarin Chinese.