Yes, as long as the marriage was legal in the jurisdiction where it occurred, a married same-sex couple may certainly begin the EB-5 process. As is customary, one individual will assume the role of the primary EB-5 investor and they will be able to claim their spouse as a derivative beneficiary.
In 2013, the U.S. Supreme Court declared Section 3 of the Defense of Marriage Act (DOMA) unconstitutional, making it so that the federal government must recognize same-sex marriages conducted by the states.
To that end, on July 1, 2013, the Secretary of Homeland Security released a statement announcing that in the wake of the new legislation, “United States Citizenship and Immigration Services (USCIS) [will] review immigration visa petitions filed on behalf of a same-sex spouse in the same manner as those filed on behalf of an opposite-sex spouse.”
On the website of USCIS, it further specifies that “as a general matter, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. Just as USCIS applies all relevant laws to determine the validity of an opposite-sex marriage, we will apply all relevant laws to determine the validity of a same-sex marriage.”
Applying for an EB-5 Visa and the New I-526 Petitions
As mentioned, one member of the married same-sex couple should assume the role of the primary EB-5 investor. To begin the EB-5 process, the investor must file Form I-526.
To accommodate the EB-5 Reform and Integrity Act of 2022, USCIS revised Form I-526 and split it into two versions: Form I-526, Immigrant Petition by Standalone Investor, and Form I-526E, Immigrant Petition by Regional Center Investor. The former resembles the original I-526 petition and is designated for standalone investors who are not looking to pool their capital with other EB-5 investors, while the latter is designed for EB-5 investors looking to merge their investment funds with that of other investors under the regional center program. The split of Form I-526 has been effective as of July 12, 2022.
After receiving approval of the I-526 petition, the EB-5 investor may apply for an EB-5 visa and conditional green card.