Will divorce during conditional residence affect an I-829 petition?

Generally, divorce during conditional permanent residency should not have any adverse consequences on the EB-5 investor’s I-829 petition. Similarly, it should not affect the spouse’s ability to obtain an unconditional green card, or the status of any dependent children.

Form I-829: A Summary

The last step in the EB-5 process, the I-829 petition should be filed by EB-5 investors who wish to remove the conditions from permanent resident status for themselves and any derivative beneficiaries.

If the EB-5 investor and their spouse have divorced during the conditional residency period, the EB-5 investor may still attach the former spouse to their I-829 petition, or if preferable, the spouse may file their own I-829 petition.

To be granted approval by United States Citizenship and Immigration Services (USCIS), the EB-5 investor must prove that all specified requirements of the EB-5 program have been met. Specifically, the EB-5 investor must append documentation to their petition that acts as sufficient evidence of the following criteria: that an eligible new commercial enterprise (NCE) was established and sustained throughout the two year conditional residency period, that the required minimum investment amount was made, and that the required job creation quota was met. The investor must demonstrate that their original business plan, which they would have submitted with their I-526 petition, was followed, that a minimum of 10 jobs were generated through their investment and these positions were filled by authorized U.S. workers.

Form I-829 must be filed within the 90 day period preceding the expiration of the EB-5 investor’s conditional green card. Once the I-829 petition has been filed and is pending, the investor’s conditional residency is automatically extended. USCIS will also issue notification of the applicant’s biometrics appointment, the attendance of which is mandatory for both the EB-5 investor and any derivatives. A divorced spouse who filed their own I-829 petition will receive a separate receipt of filing.

Typically, the EB-5 investor’s immigration attorney will prepare for the filing of Form I-829 and compile all necessary documentation. It is recommended for all prospective investors to work with an immigration attorney from the beginning of the EB-5 process, to ensure due diligence and the highest chance of success.