EB5 Investors Magazine Volume 7, Issue 1 - Page 69

EB5INVESTORS.COM 67 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.