The Petitioner seeks classification as an immigrant investor pursuant to the Immigration and Nationality Act (the Act) Section 203(b )(5), 8 U.S.C. § ll 53(b )(5). 1 This fifth preference (EB-5) classification makes immigrant visas available to aliens who invest the requisite amount of qualifying capital in a new commercial enterprise (NCE) that will benefit the U.S. economy and create at least 10 full-time positions for qualifying employees.
Field Operations Directorate (FOD) denied the petition due to abandonment under 8 U.S.C. § 103.2(b)(15), as the Petitioner did not submit a response to the notice of intent to deny (NOID). The Petitioner then filed a combined motion to reopen and consider explaining that he did not receive the NOID because prior counsel changed his address without notifying U.S. Citizenship and Immigration Services (USCIS). USCIS records show that prior counsel sent a change of address request after the issuance of the NOID. As the Petitioner did not establish that there was an error on the part ofUSCIS, FOD dismissed the motion. We then dismissed an appeal and a subsequent motion to reopen and reconsider because the Petitioner did not provide the evidence required to support a claim of ineffective assistance of counsel under Matter ofLozada, 19 l&N Dec. 63 7 (BIA 1988). The matter is now before us again on combined motion to reopen and reconsider.
The Petitioner bears the burden ofproof to demonstrate eligibility by a preponderance of the evidence. Matter ofChawathe, 25 I&N Dec. 369, 375-76 (AAO 2010). Upon review, we will grant the motion and remand the matter for further proceedings.
A motion to reopen must state new facts and be supported by documentary evidence. 8 C.F.R. § 103.5(a)(2). A motion to reconsider must state the reasons for reconsideration and establish that our prior decision was based on an incorrect application of law or policy. 8 C.F.R. § 103.5(a)(3). A motion to reconsider, when filed, must also establish that the decision was incorrect based on the evidence of record at the time of the initial decision. Id. We may grant motions that satisfy these requirements and demonstrate eligibility for the requested benefit. See Matter ofCoelho, 20 l&N Dec. 1 On March 15, 2022, the EB-5 Reform and Integrity Act of 2022 (RIA) was signed into law, revising general eligibility requirements, substantially reforming and codifying the Regional Center Program in section 203(b)(5) of the Act, and adding significant new integrity provisions. See Section 203(b)(5) of the Act, 8 U.S.C. § l 153(b)(5) (2022). As the Petitioner had filed his petition prior to the implementation of the RIA, the relevant law then in existence governs this appellate adjudication.
464, 473 (BIA 1992) (requiring that new evidence have the potential to change the outcome). A motion that does not meet applicable requirements shall be dismissed. 8 C.F.R. 103.5(a)(4). Because the scope of a motion is limited to the prior decision, we will only review the latest decision in these proceedings. 8 C.F.R. § 103.5(a)(l)(i), (ii).
In our prior decision, we determined the Petitioner did not submit evidence sufficient to meet the requirements for a claim of ineffective assistance of counsel under Lozada. Specifically, the Petitioner's sworn statement lacked details regarding the scope of representation by his former counsel, and the evidence was not sufficient to show that the Petitioner filed a complaint with the State Bar of Georgia regarding any violation of his former counsel's ethical or legal responsibilities. On motion, the Petitioner submits new evidence, including two emails from the State Bar of Georgia, one dated July 22, 2025, indicating receipt of a grievance, and another dated October 6, 2025, acknowledging receipt ofthe grievance submitted by the Petitioner against his former counsel and that the "matter is currently pending under review ...." The evidence shows that the Petitioner filed a complaint with the State Bar of Georgia regarding his former counsel's failure to comply with his ethical or legal responsibilities.
In addition, the Petitioner submitted his own new statement, as well as a statement from his former counsel clarifying the scope of his prior counsel's representation ofthe Petitioner in this petition. The statements detail former counsel's responsibilities for notifying USCTS with accurate mailing instructions for this petition. Former counsel acknowledges his failure in his responsibilities to notify USCIS of the change of address, which adversely affected the Petitioner for this petition. Based on the evidence submitted with this motion and in the record, the Petitioner has demonstrated by a preponderance of the evidence meeting the requirements for a claim for ineffective assistance of counsel under Lozada.
In light ofthe Petitioner overcoming the basis of our prior decision, we will grant the motion to reopen and remand the matter for the entry of a new decision. On remand, FOD should issue the NOID and consider the merits of the petition. FOD may request additional evidence considered pertinent to the new determination. We express no opinion regarding the ultimate resolution of this case on remand. Because the Petitioner has established eligibility on motion to reopen, we need not address the arguments presented on motion to reconsider. The motion to reconsider is moot.
ORDER: The motion to reopen is granted and the matter remanded for entry of a new decision consistent with the foregoing analysis.
FURTHER ORDER: The motion to reconsider is dismissed.
NOTICE: Aliens who are not lawfully present, or who are otherwise inadmissible or depmiable, may be subject to the commencement of removal proceedings under section 240 of the Act through the issuance of a Fmm I-862, Notice to Appear. Those proceedings may result in their removal from the United States and possible ineligibility for future visas or other immigration benefits.