Learn what happens if the principal applicant dies.
What Is an EB-5 Visa?
An EB-5 visa is a Green Card granted to an investor who has made a qualifying investment in a U.S. commercial enterprise and met all the requirements stipulated by the EB-5 visa program. The principal applicant as well as their spouse and unmarried children under 21 are eligible to receive Green Cards. Green Cards allow an investor (and their family members) to become a lawful permanent resident of the United States.
However, permanent residency is not granted right away. Each EB-5 investor must go through an application process.
The first step is to make a qualifying investment in a commercial enterprise in the United States. The next step is to file the Form I-526E visa petition along with proof that a qualifying investment has been made. Upon approval of the Form I-526E visa petition, an investor and their family members become conditional permanent residents and receive temporary Green Cards that last for two years. Near the end of that two-year period, an investor must submit proof that EB-5 program requirements have been met in Form I-829 to United States Citizenship and Immigration Services. Upon the approval of Form I-829, the primary applicant and their family members have conditions removed from their permanent residency.
Conditions for EB-5 Investors
EB-5 investors must satisfy a number of requirements. These include creating at least 10 jobs with full-time hours that last for at least two years, making an investment in a U.S. commercial enterprise, and having some involvement in the running of the business in which an investment is made, even if as a limited partner. Additionally, funds must remain at risk while invested, and investments must meet a minimum threshold.
The minimum threshold differs depending on what type of investment is made. Investments made in targeted employment areas (rural or high-unemployment areas) must be at least $800,000. Investments in projects that are not in targeted employment areas must be at least $1,050,000.
A Long Process
For various reasons, the EB-5 application process can take several months to several years from start to finish. This is especially true for applicants from countries with waiting lists for EB5 visas, like China, Vietnam, and India. Even investors from countries without visa backlogs may wait a significant amount of time to see their EB5 applications processed and approved. Applying to the EB-5 visa program requires many steps that must be completed carefully, a process that can in itself be time-consuming for the investor.
Certain applicants have a better chance of getting their EB-5 applications approved more quickly due to visa set-asides. As of March 15, 2022, 32% of available EB5 visas will be reserved for investors who put funds toward projects in rural targeted employment areas, high-unemployment targeted employment areas, and certain infrastructure projects that qualify for targeted employment area designation.
Death of a Principal Applicant
Because the EB-5 process is long and life is unpredictable, sometimes EB-5 investors pass away before their applications have been completely processed. In cases like these, on top of their grief, bereaved family members often worry about the uncertainty of their lawful permanent resident status.
However, it is possible for qualifying family members to become permanent residents of the United States even after the death of the primary applicant, as long as certain requirements are met. This article will explain what options family members have when a primary EB5 applicant dies.
Direct and Regional Center Investments
Because each situation is different and there are multiple factors that go into determining whether family members will be approved for unconditional permanent residency, this process is not always straightforward. The process differs slightly between regional center investments and direct investments. Most EB-5 investors choose to invest in regional center projects because the process of proving job creation is significantly less intensive for these investments than for direct investments. The regional center investment model is also often the best path for EB5 investors to meet their primary goal of immigrating to the United States.
Most regional center project investments are arrangements in which the regional center is a general partner that manages the commercial enterprise, and EB5 investors are limited partners who have a say in policy-making.
This is because limited partnership satisfies the qualifications for an EB-5 visa, and these types of arrangements are often most convenient for EB-5 investors. Because EB-5 investors in regional center projects are often limited partners, they will have a Limited Partnership Agreement with the regional center that outlines the terms of their partnership and their liability.
In the case of an investment in a regional center project, the Limited Partnership Agreement will be a factor that determines the outcome of an EB5 investment after the investor’s death. A Limited Partnership Agreement contains terms that stipulate what happens when an EB-5 investor dies.
Depending on the terms outlined in the agreement, an investor’s family members may be able to get the investment back after the investor’s death, or may be able to continue with the EB-5 application process, with one of the family members acting as a substitute sponsor/principal beneficiary. Different U.S. states have different laws when it comes to limited partnership, so the state where the regional center is located may also affect what happens when an EB-5 investor dies during the application process.
In the case of a direct investment, a limited partnership agreement, a limited liability company agreement, or a buy-sell agreement will determine what happens if a partner or LLC member dies.
Legislation Providing Relief for Surviving Relatives
In 2009, Section 204 1 of the Immigration and Nationality Act (INA 204(I)) was introduced to account for the case of a principal EB-5 applicant dying and leaving behind surviving family members who were included on their EB5 application. INA 204(I) stipulates that the principal applicant must meet the requirements of a “qualifying relative” for family members to be able to petition to be approved for permanent residency.
A “qualifying relative” is a person who has died shortly after applying for the EB5 visa program, and surviving relatives may become a substitute sponsor/principal beneficiary in the EB-5 immigration process.
Death Before I-526E Petition Approval
If the primary EB5 applicant died before the approval of the Form I-526E visa petition, the application or petition could still be approved if at least one family member meets residency requirements, which will be explained later in the article.
Death During Two-Year Period of Conditional Lawful Permanent Residence
If an investor dies during the two-year conditional permanent residency period, family members will still be eligible to have the conditions removed from their lawful permanent resident status. Near the end of the two-year period, family members will need to submit Form I-829, just like the EB-5 investor would have. There is a space on Form I-829 that includes instructions for the spouse and children of a deceased EB5 investor who are currently conditional permanent residents.
Along with Form I-829, a deceased EB5 investor’s spouse (likely the new principal beneficiary/substitute sponsor) and children will need to provide proof that all EB-5 visa program requirements have been met, just as the primary applicant would have. This means family members will have to provide proof that EB5 funds were legally acquired, that 10 jobs were created by the investment, and that funds remained at risk.
EB5 Affiliate Network (EB5AN) can provide guidance on what types of paperwork can be supplied to United States Citizenship and Immigration Services to prove these requirements have been met. Families of a deceased investor are also advised to submit the investor’s permanent residency card and death certificate with Form I-829.
Qualifying Relatives and Residency Requirements
It is important to note that “qualifying relative” applies to the deceased EB-5 applicant, not their family members. This language can sometimes be confusing. A deceased person is a qualifying relative if they applied to the EB5 visa program shortly before their death. This applies to applicants whose petitions are pending as well as those whose petitions have been approved at the time of death.
For family members to have a chance at having their petition or application approved after the death of a qualifying relative, specific residency requirements must be met. Family members must:
- Have lived in the United States at the time of the qualifying relative’s death.
- Be living in the United States at the time the petition or application is approved after the qualifying relative’s death.
It is not required that every family member included in the qualifying relative’s application meet the residency requirement. If only one family member meets the residency requirement, all family members may be approved for residency.
If a family member was temporarily absent from the United States on a trip abroad at the time of the principal applicant’s death, they may still meet the residency requirement as long as the United States is their primary place of residence.
Relatives of a deceased EB-5 investor may need to have an Affidavit of Support (Form I-864). This document proves that the family member will likely not become a public charge in the United States. Family members should consult an immigration attorney to learn whether this form is required in their case.
The Process for Recent Marriages
The process may be slightly more complicated in the case of a recent marriage. If an EB-5 investor’s spouse becomes a conditional permanent resident due to recently marrying the investor, and then the investor dies, United States Citizenship and Immigration Services will conduct an investigation to verify that the marriage was legitimate before the conditions are removed from the spouse’s permanent residency. This is to prevent people from obtaining Green Cards through fraudulent marriages.
USCIS Has the Discretion to Deny a Petition
Meeting all the requirements discussed above does not guarantee that United States Citizenship and Immigration Services will approve petitions or applications for deceased EB5 investors’ family members.
All this means is that USCIS will consider the case. Ultimately, USCIS is given complete discretion to determine if the dependents of a deceased investor will be able to become permanent residents. Family members’ applications can be denied for any reason. A deceased EB5 investor’s surviving family members should speak to an immigration attorney who can help them understand their options.
Speak with an EB-5 Professional Today
EB5AN can assist family members of a recently deceased EB-5 applicant and help them become the principal beneficiary/substitute sponsor of an EB-5 application. U.S. residency is still a possibility for them, and EB5AN can help bereaved families discuss the process of continuing with the EB5 application in their loved one’s absence. Family members who have questions or want to know more information about their options to become a principal beneficiary/substitute sponsor should schedule a call to speak with an EB-5 consultant.