u/EmberSpirit94

Hi everyone, I’m hoping to hear from anyone who has personally gone through, or knows someone who has gone through, a similar situation.

I was an EB-5 conditional permanent resident, and my I-829 was denied. I am now in removal proceedings and have a future Master Calendar Hearing. Separately, I have an employment-based EB-2 case with a priority date that is not yet current.
I am considering a strategy where, once my EB-2 (or potentially EB-3) priority date becomes current and consular processing is ready, I would seek voluntary departure, leave the U.S., and complete immigrant visa processing at a U.S. consulate.

I have consulted with two immigration attorneys who have different views on whether an I-829 denial results in accrual of unlawful presence following the denial decision, while the I-829 denial remains subject to review in removal proceedings.

I’m aware that unlawful presence will typically be considered and determined by a U.S. consulate during visa interviews and am curious whether anyone here has had or heard of a similar real-life experience:

• I-829 denied;
• removal proceedings initiated;
• later pursued EB-1/EB-2/EB-3 or another immigrant category;
• departed the U.S. and completed consular processing; and
• successfully received the immigrant visa without being found inadmissible for unlawful presence.

I’m especially interested in firsthand experiences with the consular interview.

Hoping to hear about actual experiences or cases people may know of. Thank you!