This page covers what happens after an I-829 denial paired with a Notice to Appear, the procedural rights conditional residents retain in immigration court, and the strategic choices that shape whether your residence is actually terminated or only said to be.
Your I-829 was denied by USCIS. Before, or at roughly the same time, you received a Notice to Appear (Form I-862) initiating removal proceedings before an immigration judge under the Executive Office for Immigration Review. The denial may have rested on a substantive sustainment or job-creation finding, or on a reopened source-of-funds analysis from the I-526 stage, or on a cross-reference inconsistency that the IPO fraud-detection team identified between your SOF narrative and your prior immigration filings.
What is happening to you is now common. Under a January 2025 Trump-administration memo, any USCIS denial that renders the person removable triggers an NTA, and I-829 denials almost always render the conditional resident removable under INA section 237(a)(1)(D)(i). The pairing was rare before 2025 and is now the default. The immigration-court system into which you are being placed has a backlog of approximately 3.4 million cases and roughly 500 immigration judges; individual hearings are scheduling three to four years out.
The legal posture in immigration court is meaningfully different from the posture before USCIS. The burden shifts. New evidence is admissible. Federal statutes and case law set the rules of decision, not USCIS policy memos. Several procedural and substantive tools that are unavailable at USCIS open up in court. None of this guarantees a favorable result, and the proceedings are stressful and expensive, but the situation is not the dead end that an I-829 denial sometimes feels like in the moment.
The substantive removability ground is INA section 237(a)(1)(D)(i): an alien whose conditional permanent resident status has been terminated under section 216 is deportable. That ground depends on the underlying termination being valid, which is not the same thing as the underlying termination having been issued. INA section 246(a) addresses rescission of adjustment in some adjacent contexts.
The standard of review for a terminated conditional residence in immigration court is de novo, as set out in Matter of Herrera del Orden. The case arose in the marriage-based context but applies to EB-5 conditional residents as well. The immigration judge reviews the record fresh, with full panoply of rights including the right to introduce new evidence not before USCIS. This is one of the most important features of the post-denial landscape: a denial that looks final at USCIS is, in a meaningful sense, the start of a separate proceeding rather than the end of the case.
Matter of Lock supports the position that the NTA's allegation of "termination of conditional residence" is admissible-as-USCIS-action but deniable-as-actual-status. The strategy is to admit that USCIS issued a termination notice and deny that the residence is, as a matter of law, actually terminated. This shifts the burden to DHS to prove termination by clear and convincing evidence, which it often cannot do on a record that supports approval under de novo review.
Subpoena authority in immigration court is set out in 8 C.F.R. section 1003.35. EB-5 removal-defense practitioners use subpoenas (or motions for subpoenas) to request the adjudicating IPO officer's testimony or records. Practitioners report that even denial of a subpoena motion can establish that DHS, not the respondent, bears the burden of proving the basis for termination.
Hui Ran Mu v. Barr, 936 F.3d 929 (9th Cir. 2019) supports the proposition that EB-5 dependents may litigate or renew the I-829 in removal proceedings even though they were not the petition filer. The case is binding within the Ninth Circuit and persuasive elsewhere.
Beyond the I-829 contest itself, three additional avenues are typically considered. LPR cancellation of removal under INA section 240A(a) is available where the respondent has had seven years of continuous residence and five years as a lawful permanent resident, including conditional residence. Family-based adjustment via I-130 is a parallel track for respondents with qualifying U.S.-citizen or LPR family members. Federal-court mandamus on the I-829 itself is available under the 90-day statutory adjudication target in INA § 216A(c)(3)(A) where the agency holds a refiled or pending matter beyond the statutory period.
The current administration has assigned some active-duty Judge Advocate General officers to serve temporarily as immigration judges. There is a serious Posse Comitatus argument (18 U.S.C. section 1385 and related authorities) that JAG officers may not constitutionally adjudicate civil immigration matters. Practitioners file motions to disqualify at the master calendar to preserve the issue. Failure to raise the motion at the master calendar can waive the argument for federal-court review.
The I-829 denial is on a record that, in counsel's judgment, supports approval under a fair de novo review.
This is the central defense in most EB-5 removal cases. The strategy combines a Matter of Lock allegation-denial pleading at the master calendar (admit USCIS issued the termination, deny that residence is actually terminated), introduction of new evidence not in the USCIS record (forensic accounting reports on project sustainment, additional source-of-funds documentation that USCIS refused to consider, expert declarations on contested project economics), and substantive briefing under the regulatory and case-law framework that USCIS applied. The de novo standard means the immigration judge is not bound by USCIS's findings. Subpoenas to the adjudicating officer or to USCIS records support the contest where DHS's prima facie case is thin. Whether the contest succeeds depends on the strength of the original record, the adequacy of the supplementation, and the discretion of the immigration judge.
The respondent's case is assigned to an active-duty JAG officer serving temporarily as an immigration judge.
The motion is grounded in Posse Comitatus principles (18 U.S.C. section 1385) and the constitutional limits on military participation in civilian adjudication. Practitioners report that motions to disqualify have, in some matters, been granted, and in others denied with the issue preserved for federal-court appeal. The critical procedural point is that the motion must be raised at the master calendar; failure to do so waives the argument for later review. Whether the motion is granted is decided case-by-case by the assigned judge.
The respondent has at least seven years of continuous residence in the U.S. and at least five years as an LPR (counting conditional residence).
LPR cancellation under INA section 240A(a) is a discretionary form of relief preserved as a backup where the I-829 contest does not produce a favorable termination of proceedings. The eligibility math is: seven years residing continuously in the U.S. after lawful admission in any status, plus five years as an LPR including conditional. Most EB-5 conditional residents who reach removal proceedings have been in lawful nonimmigrant status for years before adjusting; the seven-year residence requirement is often met. Whether the immigration judge grants cancellation is a discretionary decision based on the equities, the seriousness of any adverse factors, and the entire record.
The respondent has a qualifying U.S.-citizen or LPR family relationship that supports an I-130 petition.
Filing an I-130 in parallel with the removal-defense work creates a separate immigrant-visa pathway that does not depend on the EB-5 record. Spousal I-130s with concurrent I-485 are the most common configuration. Mandamus is available in the Sixth Circuit and other receptive jurisdictions where USCIS holds the I-130 unreasonably. The dual-track approach has supported clients in past cases where the EB-5 record was unrecoverable. Whether it is appropriate depends on the family configuration, country of chargeability, and timing.
The respondent's country of origin presents return-risk concerns (Russia, Ukraine, Iran, Venezuela, and others depending on current conditions).
Some clients pursue residence or citizenship in a third country (typically a CBI country or a country with an investment-residence pathway) as a parallel safety net that does not depend on the EB-5 outcome. The strategy is not within the EB-5 firm's scope but is something we coordinate with international counsel where the client wants it. Whether and where to pursue a third-country pathway is a personal decision with cost, tax, and timing implications.
USCIS holds a refiled or pending I-829 beyond the 90-day statutory target.
The 90-day adjudication target in INA § 216A(c)(3)(A) is the most reliable mandamus hook in EB-5 practice. Courts in receptive jurisdictions (including Sixth Circuit cases like Chhajed v. Jaddou, S.D. Ohio 2024, and Guthikonda v. Jaddou, W.D. Ky. 2023) have ordered adjudication where USCIS exceeded the statutory window. The D.C. Circuit, after Da Costa v. IPO, 80 F.4th 330 (D.C. Cir. 2023), is harder. Whether mandamus is appropriate, and in which forum, depends on venue rules and the procedural posture of the case. The firm's Federal Litigation pages cover unreasonable-delay mandamus and APA suits in depth.
EB-5 approval rates have fallen materially over the past several adjudication cycles, and the rate at which USCIS issues Requests for Evidence, Notices of Intent to Deny, and direct denials has risen sharply. The June 2025 reinstitution of the CISNA/EDLO directive (instructing officers to deny rather than RFE in close cases) and the routine pairing of I-829 denials with Notices to Appear in removal proceedings are reshaping how EB-5 practice is done. Profiles that we and other firms saw approved without challenge two or three years ago are now drawing aggressive scrutiny, particularly on I-829 sustainment and on reopened source-of-funds questions, and some are being denied outright on records that, on their face, look as strong as records that previously cleared. Officers also vary considerably in how they apply discretionary judgments under the post-RIA framework. This climate is not unique to EB-5 conditional residents in removal proceedings, but it is real, and it informs how we counsel clients before, during, and after filing.
This page describes patterns we have seen across many removal-defense matters. It is general information about how this type of scenario is typically analyzed, not a prediction about any specific case and not a representation that meeting any particular evidence pattern will result in approval. EB-5 outcomes turn on the entire record, the strength of the legal and factual arguments, the current adjudication climate, and the discretion of the adjudicating immigration judge.
Tell us about your immigration needs and we'll be in touch to discuss how we can help.
Immigration counsel to Fortune 500 employers at a national firm · Adjudicated 12,000+ visas at the U.S. Consulate, Mexico · Working in U.S. immigration since 2008
Featured in Newsweek, Condé Nast Traveler, Daily Mail