EB5INVESTORS.COM
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ADVANCED REMOVAL,
ATTORNEY ADVOCACY
& STRATEGY FOR EB-5 INVESTORS
MARRIAGE & IMMIGRATION
INVESTMENT CASES ARE DIFFERENT:
Since immigration judges and DHS trial attorneys
rarely encounter EB-5 investors, it seems that there
is a temptation for them to treat an EB-5 investor
with a denied I-829 petition the same as they would
a conditional lawful permanent resident through
marriage to a U.S. citizen with a denied I-751. After all,
in both of these situations, the law and regulations
are similar and the reason why the noncitizen is
in immigration court is because his or her petition
to remove conditions was denied by USCIS. When
advocating for EB-5 conditional permanent residents
in removal proceedings and educating the immigration
judge and DHS attorney about EB-5 matters, here are a
few pointers to keep in mind:
Do not let immigration judges and trial attorneys
paint EB-5 investors with the broad I-751 brush.
Educate the court and the DHS attorney on what
EB-5 is and the important nuances and distinctions
between I-751 requirements and I-829 requirements.
In reviewing the I-829
“ before
the court, remind
the judge that DHS bears
the burden to establish by
a preponderance of the
evidence that the facts and
information in the I-829
were not true and that the
petition was properly denied.
Each of these categories is unique in its eligibility
criteria and requirements for condition removal.
While the law at INA 216 and INA 216A, as well as
the regulations at 8 C.F.R. 216.5 and 216.6, appear to
be structured in a parallel manner, they each have
substantively different requirements.
For example, removal of condition in the marriage
context is based upon good faith and a showing that
the marriage was not entered into for the purpose of
evading immigration laws. Removal of conditions
for EB-5 investors is based upon sustainment of the
investment and proof of job creation. While the timing
requirements for filing the respective condition-
removal pet it ions are similar, t he adjudicator y
process is so different that the jurisprudence on I-751
marriage-based condition removal cases should not be
applied to I-829 condition removal cases.
There i s no i nd icat ion t hat Cong ress i ntende d
immigrant investors prove good faith marriages
or bona fide purposes for their investments any
more than it intended married aliens show they
maintained/sustained their marriage and procreated
a certain number of children during the two years of
conditional residency. Marriage cases and immigrant
investor cases both deal with conditional permanent
residents. The similarities end there. There is no
rat iona l reason to apply a BI A or dist rict cour t
decision dealing with a marriage case to one dealing
with an immigrant investor because the cases and
requirements are so different.
EDUCATE THE JUDGE ABOUT THE BURDEN OF PROOF:
In reviewing the I-829 before the court, remind the
judge that DHS bears the burden to establish by a
preponderance of the evidence that the facts and
information in the I-829 were not true and that the
petition was properly denied. This is a de novo review
by the judge. New evidence and testimony may be
introduced and considered.