Strictly speaking, no, once the EB-5 investor has filed Form I-526 as the principal applicant, they cannot transfer the application to their spouse and have the spouse become the principal investor. Under the current law, transference of principal petitioner status is not permitted.
If the I-526 petition has not yet been approved, the original EB-5 investor may withdraw their application. The spouse may then re-file Form I-526 as the principal EB5 investor. However, this will have significant financial repercussions. The new principal applicant will be required to submit a new filing fee for the I-526 petition, as well as additional legal fees and an administrative fee if the new principal applicant is investing through a regional center. Furthermore, there will be immigration-related repercussions. A newly filed I-526 petition will create a new priority date, which will lead to lengthier waiting times for the initial processing of the I-526 petition and ultimately cause delays for the EB-5 investor being granted lawful permanent residency.
Fees for Filing Form I-526
Since July 12, 2022, United States Citizenship and Immigration Services (USCIS) has split the I-526 petition into two different versions: Form I-526, Immigrant Petition by Standalone Investor, which is intended for EB-5 investors who opt to follow the direct investment model, and Form I-526E, Immigrant Petition by Regional Center Investor, which is intended for EB-5 investors who choose to invest through an EB-5 regional center. The filing fee for both petitions is $3,675.
The I-526E petition also requires a biometric services fee of $85 for each investor filing an initial I-526E petition. If the EB-5 investor files Form I-526E on or after October 1, 2022, an additional $1,000 fee is required in accordance with the 2022 EB-5 Reform and Integrity Act.
For both direct and indirect investors, it is highly advisable to retain counsel from an immigration attorney throughout the application process. While rates will depend on the particular attorney, EB-5 investors should be prepared to pay legal fees up to $50,000.
Finally, for EB-5 applicants who intend on investing through a regional center, the regional center will charge an administrative fee for managing EB-5 projects, ensuring all requirements are met and all regulations are adhered to. The administrative fee varies depending on the regional center but is generally around $50,000.