EB-5 investors who have received an I-829 Petition denial but who have a valid I-551 stamp in their passport should reconsider international travel and, if abroad, consider returning to the United States. U.S. Customs and Border Protection (CBP) agents reportedly have detained some permanent residents returning from abroad where USCIS has issued a notice to appear (NTA) before the Immigration Court for the initiation of removal proceedings.
Where an I-829 Petition is denied, USCIS takes the position that it is canceling the resident status of the alien investor and his or her dependents. However, binding case law says that investors and dependents retain their permanent resident status until completion of removal proceedings before an immigration judge and any subsequent appeal process before the Board of Immigration Appeals (BIA). Thus, investors were able to continue to receive I-551 stamps to evidence permanent resident status through the end of any appeals process before the BIA. As a result, investors previously were able to continue traveling abroad, and short trips abroad generally were not considered an abandonment of their permanent resident status or the voluntary abandonment of their removal proceedings. Short, international trips were allowed throughout the end of the removal proceedings before the BIA.
However, under the current presidential administration, CBP may be following a new policy wherein they will not admit immigrant investors where removal proceedings have commenced and an NTA has been issued. In addition, CBP could potentially conduct questioning urging an investor or dependents to voluntarily abandon status at the border, and then return the applicant to their home country. Finally, CBP may also seek to detain investors at the border upon returning to the United States.
Where an NTA has not been issued yet, investors should consider returning to and remaining in the United States. USCIS has the discretion to issue an NTA and file it with the Immigration Court, and USCIS can do so at any time following the denial of the I-829 Petition without warning. Importantly, investors and dependents may well be put into secondary inspection while the CBP officer reviews the status of an I-829 Petition. Investors and dependents with an I-829 Petition denial should speak with experienced immigration counsel before returning to the United States. Investors and their dependents with denied I-829 Petitions who are present in the United States should reconsider international travel.