Filing Form I-829 to Remove Conditions on EB-5 Status
It is possible that if the I-829 is denied or not filed (among other reasons), that the investor and his or her family could go into removal proceedings.
The following needs to be considered:
Burden of Proof—Investor can be deported, if status is terminated. If status is terminated because USCIS, during 2-year CR period or after an interview at the end of the 2-year period, finds the applicant ineligible, the burden is on the USCIS by a preponderance of the evidence. However, if the investor fails to appear without valid cause at the interview, or fails to file a petition removing conditions, the burden is on the investor to establish eligibility.
Presentation of Evidence: In the context of the IJ’s “review” of the denial of a conditional residence marriage waiver, the IJ erred in treating the review as if it was an appellate review of USCIS’s denial limited to the record before USCIS. The alien may introduce, and the Immigration Judge should consider, material and relevant evidence without regard to whether it was previously submitted or considered in proceedings before the DHS
Status During Removal Proceedings—An investor placed in removal proceedings remains eligible to travel and to work until a final order of removal.
Late Filing—The USCIS may accept an untimely filed I-829 if the alien shows that “failure to file a timely petition was for good cause and due to extenuating circumstances.” If the petition is not filed until after jurisdiction vests with the immigration judge, the immigration judge may terminate the matter upon joint motion.