How might derivatives spend more than six months abroad after obtaining an EB-5 visa?

After an EB-5 investor and their immediate family has been granted a U.S. green card, it is best for everyone to enter the United States while their visa is still valid. Typically, this is within six months of the issue date of the visa. It is recommended that the investor and their family enter the United States within the six month window, at least for a short time. If they need to leave the United States, as many EB-5 investors do for business purposes, it is best to obtain a re-entry permit to avoid any issues. The same rules that apply to an EB-5 investor—also known as the primary applicant—apply to derivative beneficiaries. Derivative beneficiaries are the immediate family members — spouse and unmarried children under the age of 21 — of an EB5 investor. Derivative beneficiaries can obtain an EB5 visa through their ties to an EB5 investor.

The greatest concern for EB-5 visa applicants who have been given a green card is to prove their intention to permanently reside in the United States. Once Form I-526—Immigrant Petition by an Alien Investor—has been adjudicated, EB-5 investors and their immediate family members are granted temporary U.S. permanent resident status for a period of two years. If an EB5 visa holder spends too much time abroad during this period, they may be considered to have abandoned their residency status in the United States.

Near the end of the aforementioned two-year period, an investor must file Form I-829 to have the conditions of their temporary permanent residence removed. Upon approval, an investor and their family members will become lawful permanent residents (LPR). Although LPRs are permitted to travel abroad, they must also take care to not spend too much time outside of the United States. Depending on the length and circumstances of a trip abroad, it may lead to a determination that the LPR abandoned their status. Moreover, this can affect an LPRs future application for U.S. citizenship.

To avoid having any issues with removing conditions on their permanent residence or applying for U.S. citizenship, it is in the best interests of an EB-5 investor and their derivative beneficiaries to obtain a re-entry permit if they need to remain abroad for longer than the recommended six months. To obtain a re-entry permit, Form I-131—Application for Travel Document—must be filed. It would also be best to work with an immigration attorney who can ensure that the travelers have substantial enough ties to the United States to prove their intent to make the United States their permanent residence.