EB5 Investors Magazine | Page 60

Continued from page 57 to make an entirely independent decision on the investor’s I-829 petition, federal district court judges are generally limited to reviewing the record (i.e., the documents and information) that was submitted to USCIS along with the I-829 petition, including any responses to requests for evidence and/or notice(s) to intent to deny. Nevertheless, we have found that in certain circumstances, bringing a lawsuit in federal court provides the best avenue for achieving successful outcomes for investors – particularly in the Regional Center context, where USCIS denies multiple I-829 petitions in the same project. Finally, federal litigation, as well as administrative litigation in Immigration Court, allows experienced litigators to negotiate with government attorneys for a mutually agreeable settlement based on specific circumstances. Administrative Appeals Office Certification and/or Motion to Reopen and/or Reconsider with USCIS Finally, in some cases, USCIS has certified the denial of the I-829 for review (appeal) to the Administrative Appeals Office. While the investor does not have a right to file an appeal with the AAO, the government does have the right to certify or ask the AAO to review denials of an I-829. To date, the AAO has uniformly affirmed USCIS denials of I-829s. The fact that the AAO has affirmed the denial of the I-829 petition, however, does not mean that the investor has no additional remedies and would not preclude an action in federal court and/or litigation in removal proceedings, if applicable. Additionally, the investor may file a motion to reopen and/or reconsider the denial of the I-829 petition with USCIS; however, such procedures must be specifically calculated to create and supplement a better record for federal court review and/or renewal of the I-829 petition in removal proceedings, rather than simply allow USCIS to cure defects in an earlier denial decision. Conclusion USCIS’s denial of an I-829 petition can have a devastating effect on EB-5 investors. After emigrating from their home countries and building a new life in the United States, investors may face the fear of being placed in removal or deportation proceedings before an immigration judge, where they must fight for their right to stay in the United States. Fortunately, investors have a real chance to preserve their residency if they can present their cases appropriately and prove that their renewed I-829 petition should be approved. They may also seek federal court review and seek an order from a federal judge that USCIS’s decision to deny the I-829 petition was incorrect. These two procedures give an experienced immigration attorney a fresh chance to win the investor’s case or potentially negotiate an agreement with the government. When it comes to I-829 petitions, USCIS’s denial is not the final word. Armed with an experienced attorney, the law provides investors with a meaningful chance to win their unconditional permanent residency and the right to reside and live in the United States permanently. ★ John Patrick Pratt Helena Tetzeli John Patrick Pratt is a Partner at Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A., in Miami, Florida. Mr. Pratt received his BA degree from Florida State University and his juris doctor degree Tulane University School of Law. Mr. Pratt is AV Rated by Martindale-Hubbell, and is Florida Bar Board Certified in Immigration & Nationality Law 2005-2015. He concentrates in all areas of immigration and nationality law, including corporate immigration matters, employment based immigrant and nonimmigrant petitions, deportation or removal defense in EB-5 and all other contexts, and federal court litigation, including complex EB-5 related matters. Edward Ramos is an associate with the Miami firm Kurzban, Kurzban, Weinger, Tetzeli & Pratt, P.A. He obtained his J.D. from Yale Law School in 2012. His practice concentrates on litigation bef