The EB-5 Immigrant Investor Program offers this one-time big opportunity for eligible immigrant investors to obtain permanent residency in the United States by investing $1,800,000 or $900,000 in an EB-5 qualifying project. This opportunity benefits not only the investors but their eligible immediate family members as well – their spouse and unmarried children under 21 years of age.
Two years after conditional permanent residency, investors and their families can move forward and file an I-829 petition to remove the residency status’ conditions. Once the creation of ten full-time jobs for U.S workers is met along with other criteria, investors with their families can obtain permanent resident status.
Unfortunately, there are cases when an investor dies along the EB-5 process, leaving the immediate family members in mourning and uncertainty about their future in the U.S.
Legislation Enactment to Provide Relief for Surviving Relatives
In 2009, legislation was enacted to address the concerns of EB-5 families if the primary applicant dies during the EB-5 process. In terms of the law, section 204 (I) of the Immigration and Nationality Act (INA), the dependents of the deceased investor can request an adjustment of immigration benefit” if specific conditions apply.
The request’s main requirement is that the investor is eligible for “qualifying relative” status, which is defined by the United States Citizenship and Immigration Services (USCIS) since INA 204 (I) does not define this term.
“Qualifying Relative” Requirements
According to USCIS, a “qualifying relative” is a person “who, immediately before death, is the primary beneficiary in an employment-based immigrant visa petition.” Although it does not matter if the EB-5 application is approved at the time of the investor’s death, the person applying for relief under INA 204 (I) must meet specific residency requirements.
All derivative beneficiaries, that is, the investor’s spouse and all their children eligible for EB-5 visas can still secure U.S. green cards. If family members satisfy the requirements, they can complete the immigration process, just as they would have if the principal EB-5 petitioner EB-5 had not died.
The Residency Requirement
There are two conditions of the residency requirement that the immediate family member applying under INA 204(I) must satisfy. The first condition states that the family member must have been a U.S. resident at the time of death of the qualifying relative. Second, the family member must continue residing in the U.S. even after the qualifying relative’s death.
The family member may have been abroad during the qualifying relative’s death provided that their primary residence is in the U.S. Moreover, it is not required that all family members satisfy the residency requirement. One member that meets the requirement is all good to apply for relief under INA 204(I).
What is the Process for Recent Marriages?
In the case of a recent marriage, the application for relief becomes somewhat complicated. Due to a recent marriage, an EB-5 investor’s spouse received a conditional permanent resident status, and the investor unfortunately died. USCIS will be initiating an investigation to confirm the legitimacy of marriage before granting the surviving spouse permanent residency. The investigation is cautiously done to prevent people from becoming U.S permanent green card holders through fraudulent marriages.
The USCIS’ Discretion to a Petition Denial
Alas, the decision of whether to grant permanent U.S. resident status to the dependents of an EB-5 deceased investor is solely determined by the USCIS. Even when all requirements seem to be satisfied, a family member’s application may be denied as the USCIS deemed it to be.
On the other end, the family members of a deceased EB-5 investor should seek guidance and advice from an expert immigration attorney to help them explore available options and ensure a less stressful pathway as possible.