The EB-5 investor visa is a direct pathway for foreign nationals to obtain permanent residency (Green Card) in the United States. However, obtaining a Green Card through an EB-5 investment is a multi-step process involving complex requirements and regulations. Every investor’s case is unique, and applicants must seek professional help from an experienced immigration attorney who can simplify the EB-5 process and guide them through the intricate legal aspects of their petition.
Sometimes, unexpected circumstances may develop during the adjudication of an EB-5 application that could negatively impact its outcome. Investors or their family members could face a denial by United States Citizenship and Immigration Services (USCIS), the federal agency that oversees the EB-5 Immigrant Investor Program, if they no longer meet the eligibility criteria for immigration. Therefore, investors need to understand the impact of such unforeseen events and consult with their attorneys to minimize potential risk factors.
In this article, we will examine some scenarios that could affect the approval of an EB-5 application and discuss the best recourse for petitioners in such conditions.
Marital Status
Divorce
Birth of a Child
Aging Out of Dependent Children
Marriage of an Investor’s Dependent Child
Death of the Principal Applicant
Contact EB5AN for Assistance
Marital Status
The EB-5 program allows foreign investors and their eligible family members (the spouse and unmarried children under 21) to obtain lawful permanent residency in the United States through investment in a new commercial enterprise if the investment creates at least 10 permanent full-time jobs for qualified U.S. workers.
The primary EB-5 investor is called the principal applicant, and the qualified dependent family members of the investor are called derivative beneficiaries. The principal applicant must include the name of their spouse and dependent children at the time of filing Form I-526E, which is the initial EB-5 petition.
If the principal applicant gets married after filing or approval of Form I-526E but before they receive the two-year conditional permanent resident status, they can add the spouse’s name to their immigrant visa application. The spouse will then qualify as a derivative beneficiary for the EB-5 visa.
However, if the investor has already received the conditional Green Card, they can file an immigrant visa petition for the spouse under the F2A family preference category. The same will apply even if the investor’s I-829 petition for removal of conditions has been filed or approved.
It must be noted that if the I-829 is pending approval and is eventually denied for some reason, the F2A petition of the primary applicant’s spouse will also be rejected.
Marriage of an EB-5 Investor to a U.S. Citizen
In the case of an EB-5 investor getting married to a U.S. citizen, they are eligible to receive permanent residency based on their marriage. They can choose to withdraw their EB-5 petition and apply for a marriage-based Green Card or continue with the EB-5 process if the I-526E petition has already been approved. In either case, the Green Card will initially be granted on a conditional basis for two years. At the end of the two-year period, the applicant must apply for the removal of conditions.
If the EB-5 investor has already received a conditional Green Card, they still have the backup option to immigrate through their marriage to a U.S. citizen if their EB-5 application encounters any problems at the I-829 stage. In that case, they must abandon their conditional EB-5 Green Card and re-file for immigration based on their marriage.
Divorce
Divorce of an EB-5 investor can impact the status of their spouse’s petition depending on the timing of the divorce and the stage of their EB-5 process.
If the principal investor and the spouse have already received their conditional Green Cards, their divorce will not have any impact on the spouse’s lawful permanent residency. Both can file their I-829 petition, together or individually, to remove conditions on their Green Cards.
If the divorce happens before I-526E petition approval, the investor’s spouse does not remain a derivative beneficiary of the principal applicant and cannot proceed further in the EB-5 process. The primary EB-5 investor must notify the National Visa Center and inform them of the divorce to amend the petition.
However, if the divorce happens after I-526E approval but before the spouse receives conditional permanent residency, USCIS may consider the spouse’s eligibility depending on specific circumstances. Consulting a qualified immigration attorney is crucial at this stage.
Birth of a Child
Just as in the case of the spouse, a newborn of the EB-5 investor can be added to the petition as a derivative beneficiary if Form I-526E has already been filed or approved but the conditional Green Card has not yet been granted.
Once the EB-5 investor and their family receive conditional permanent resident status and move to the United States, a child born in the United States will automatically become a U.S. citizen.
However, if the child is born abroad but the parent has already obtained a conditional Green Card, the child can receive lawful permanent resident status upon entering the United States under specific conditions.
In almost all other cases, a Green Card holder’s child is eligible for an immigrant visa through family sponsorship under the F2A category.
Aging Out of Dependent Children
“Aging out” of dependent children, i.e., their turning 21 during the EB-5 process, used to be a major concern for investors due to long EB-5 processing times. Thanks to the Child Status Protection Act (CSPA), EB-5 investors’ children are now protected from disqualification even if they reach the age of 21 before Form I-526E is approved.
CSPA considers the date of the I-526E petition to calculate the child’s age, not the adjudication date. So long as the child was under 21 years of age when the investor filed Form I-526E, they do not lose their eligibility as a dependent beneficiary of the EB-5 investor—provided they are still unmarried at the time of the investor’s immigrant visa adjudication.
However, these principles may affect EB-5 applicants differently if they are applying through consular processing abroad, so they must consult an EB-5 immigration lawyer to correctly calculate their children’s age for immigration purposes.
Marriage of an Investor’s Dependent Child
Only unmarried children under 21 (age calculated as per CSPA) can be considered eligible for an immigrant visa as derivatives of the EB-5 investor.
If a principal applicant’s dependent child gets married before the investor receives the conditional permanent resident status, the child will lose EB-5 visa eligibility.
Once the EB-5 investor has completed their immigrant visa process through consular processing or adjustment of status, the dependent child’s marriage will not impact their status as a derivative beneficiary.
Death of the Principal Applicant
In the unfortunate event of the death of a principal EB-5 investor after the I-526E petition has been filed, there’s still a chance for derivative beneficiaries to obtain the EB-5 visa if they meet the residency requirements.
That is, if any of the dependents of the EB-5 investor were residing in the United States in valid nonimmigrant status at the time of the investor’s death, the family can proceed with the pending I-526E petition. The residency condition also requires the said dependent to be living in the United States when the petition is adjudicated.
If the petition receives approval from USCIS, all the dependent beneficiaries included in the EB-5 petition of the deceased investor can receive conditional resident status.
However, if none of the dependents can meet the residency requirements, the only option is that the investment must be transferred to the spouse, who will need to file a new I-526E petition meeting all EB-5 qualification criteria.
If the principal applicant passes away after the dependents have obtained conditional Green Cards but before the I-829 petition has been filed or approved, they are eligible to complete the process and obtain permanent residency. They must submit Form I-829 in time for the removal of conditions, along with the supporting documents to prove that all EB-5 program requirements have been met.
Contact EB5AN for Assistance
The EB-5 visa is a fast and reliable pathway to permanent residency for EB-5 investors and their family members. However, changes in EB-5 investors’ personal circumstances can pose a serious immigration risk for the applicants. If you have any questions about such situations, EB5AN can guide you to the best possible outcome.
If you’d like to know more about EB-5 visa guidelines for investors and their derivative beneficiaries, book a free call with our expert team today.
