What to Do If Your I 829 Petition Is Denied: Options, Risks, and Your Next Steps

For most EB‑5 investors, Form I‑829 is the final hurdle—the moment that transforms a conditional green card into permanent residency. But what happens if that critical petition is denied?

While it can feel devastating, a denial does not mean automatic deportation or the end of the road. With the right legal strategy and awareness of your rights, many investors can recover, refile, or even win their case through litigation.

Here’s everything you need to know.

What Is Form I‑829?

Form I‑829 is the Petition by Investor to Remove Conditions on Permanent Resident Status. It must be filed within the 90-day window before your conditional green card expires (typically 2 years after initial approval).

To succeed, you must prove:

• Your investment remained at-risk and in the NCE

• The $800,000 (or $1.05M) was fully invested

• The project created (or will create) at least 10 full-time jobs for U.S. workers

If USCIS finds flaws in your evidence, questions your job creation methodology, or suspects misrepresentation, they may issue a denial.

What Happens When I‑829 Is Denied?

A denial doesn’t mean you must immediately leave the U.S. Here’s what usually follows:

• Conditional permanent residency continues until a final removal order is issued.

• USCIS may issue a Notice to Appear (NTA), placing you in removal proceedings.

• Many investors do not receive NTAs immediately, buying time to assess options.

• You can request an I‑551 stamp extension from USCIS to preserve work and travel authorization while your case is pending or in litigation.

Important: If you leave the U.S. after a denial and an NTA is pending, you may be denied re-entry. International travel during this period is highly discouraged.

Why Do Denials Happen?

The most common reasons for I‑829 denials include:

• Job creation shortfalls (e.g., jobs not documented or not lasting 2 years)

• Inadequate or missing source-of-funds evidence

• Failure to prove sustained investment in the project

• Fraud or misrepresentation by the investor or project

• Project noncompliance (e.g., the NCE fails, is terminated, or misuses funds)

Sometimes, the issue isn’t investor behavior—it’s poor documentation, project errors, or lack of attorney oversight.

What Are Your Legal Options?

1. Motion to Reopen or Reconsider (MTR)

If you believe USCIS made a mistake or new evidence is available, you can file a Motion to Reopen or Motion to Reconsider within 30 days of the denial. This allows USCIS to re-evaluate the petition without litigation.

2. Defend in Removal Proceedings

If USCIS issues an NTA, your case goes before an Immigration Judge. There, you can reargue your eligibility for permanent residency. The judge reviews the case de novo, meaning they are not bound by USCIS’s previous decision.

This process may take months or years, but many investors win at this stage—especially with strong legal representation.

3. Appeal to the Board of Immigration Appeals (BIA)

If the Immigration Judge denies your case, you can escalate to the BIA and eventually to a federal circuit court, depending on your jurisdiction.

Other Strategic Options

Reinvest and Refile

If your original EB‑5 project failed or fell out of compliance, you can withdraw your green card application and refile a new EB‑5 petition with a stronger, vetted project. You must reinvest fresh capital, but this can preserve your long-term immigration plan.

Explore Other Visas

If EB‑5 is no longer viable, consider other options:

• Marriage-based green card (if applicable)

• H‑1B, O‑1, or E‑2 visas for work or entrepreneurship

• Asylum or humanitarian options in rare cases

A skilled immigration attorney can evaluate your eligibility across visa categories.

Good News: RIA Protections May Help

Under the EB‑5 Reform and Integrity Act (RIA) of 2022, investors are now better protected:

• If your Regional Center or project is terminated, USCIS allows time to reassociate with a compliant NCE

• Good-faith investors are not punished for fraud or errors made by the project manager

• I‑956F approvals (project pre-approvals) provide more predictability and fewer surprises at the I‑829 stage

Why Legal Counsel Is Crucial

I‑829 denial cases are complex, high-stakes, and highly fact-specific. A great attorney can:

• Analyze USCIS’s reasoning and build a counter-argument

• File Motions to Reopen with the right legal standards and evidence

• Prepare your removal defense or appeal

• Help you weigh EB‑5 reinvestment vs. alternate options

If you don’t already have EB‑5-specific counsel, get one immediately following a denial.

Final Thoughts from EB5-USA

“A denied I‑829 is not the end—it’s a reset button. With the right team and the right strategy, many investors find a new path to permanent residency. The key is not panicking—but acting fast.”

— Delo Baker, Managing Director, EB5-USA

We’re Here to Help

EB5-USA works with attorneys, economists, and compliance professionals to help investors succeed not just at the beginning—but at every step of their journey.

If you’ve been denied or are concerned about your I‑829 petition, contact us to explore next steps. With the right structure, even a setback can become a second chance.

📩 contact@ebfiveusa.com 🌐 www.ebfiveusa.com

Because your Green Card shouldn’t take a lifetime