INCREASED ISSUANCE OF NTAS FOLLOWING I-829 DENIALS: WHAT EB-5 INVESTORS NEED TO KNOW

Recent reports suggest that Notices to Appear (NTAs) are being issued at a significantly faster rate, likely as a result of policy adjustments under the current administration. EB-5 investors should be aware of their legal right to challenge the denial of their I-829 petition in removal proceedings, as established under 8 U.S.C. § 1186b(b)(2) of the Immigration and Nationality Act (INA).

Key Changes: Faster Issuance of NTAs

Historically, USCIS did not immediately issue NTAs following an I-829 denial, often resulting in investors waiting years—if ever—to receive one. However, this trend appears to be shifting, with investors now seeing NTAs issued much more quickly after an I-829 petition is denied.

Travel Risks for Investors with Denied I-829 Petitions

Many EB-5 investors whose I-829 petitions were denied still hold I-829 receipt notices that automatically extend their conditional permanent resident (CPR) status for 48 months beyond the expiration date of their green card. However, traveling internationally using only the I-829 receipt notice carries significant risks.

Potential Consequences of Traveling with Only an I-829 Receipt Notice:

• Investors may be denied boarding on a flight back to the U.S.

• They could face difficulties at the port of entry, including detention.

Recommended Action:

If international travel is necessary, investors with a denied 829 petition should visit a local USCIS office to request a valid I-551 stamp as evidence of their status before leaving the U.S.

Do Investors Maintain Lawful Status After an I-829 Denial?

Yes. Under established regulations and case law, an EB-5 investor and their dependents continue to be considered lawful permanent residents until an immigration judge makes a final determination on their status.

Legal Precedents Supporting Ongoing Permanent Resident Status:

• Matter of Lok, 18 I&N Dec. 101, 105-106 (BIA 1981) – Permanent resident status does not end until the entry of a final administrative order of deportation.

• Matter of Singh, 22 I&N Dec. 3383 (1999) – Even after conditional status is terminated, the investor retains temporary status during removal proceedings.

• Etuk v. Slattery, 936 F.2d 1443 (2d Cir. 1991) – Investors retain lawful status until the immigration court issues a final decision.

• 8 C.F.R. § 264.5(g) – Supports ongoing eligibility for documentation of status.

USCIS Policy Confirms I-551 Stamp Eligibility After Denial

Official USCIS policy guidance further reinforces that investors and their dependents remain eligible to obtain I-551 stamps even after an I-829 denial. See 6 USCIS-PM, Pt. G, Chapter 7, Section D.

Reports of Travel Issues with I-551 Stamps

There have been recent cases of investors being denied reentry or detained at U.S. ports of entry despite having an I-551 stamp while their NTA was pending.

Investors facing this situation should:

✔ Carefully assess whether travel is necessary.

✔ Consult with an immigration attorney before making international travel plans.

Next Steps & Legal Support

Given these policy shifts, it is more important than ever for EB-5 investors to stay informed and proactive in protecting their status. If you have received an NTA or need assistance following an I-829 denial, our team of experienced EB-5 immigration attorneys is here to help.

For questions or legal guidance, contact us today!