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When an EB-5 immigrant investor successfully qualifies to invest in an EB-5 project, one of the primary benefits is that the investor, his or her spouse, and their unmarried children under 21 years old may be granted U.S. permanent resident status.
This opportunity is unique to the EB-5 Immigrant Investor Program and culminates in the entire family receiving permanent resident status in the U.S. once they have filed an I-829 petition and it has been approved.
This petition may be filed after successfully completing two years of conditional permanent residency, and its purpose is to remove the conditions of meeting all EB-5 program criteria – for instance, the investment has created at least 10 new, full-time jobs for U.S. workers that last at least two years.
However, life has no guarantees, and occasionally an investor may pass away somewhere along the EB-5 processing timeline.
In these rare cases, it is important for investors’ dependents to understand what this means for EB-5 residency status and what resources they have at their disposal.
What Is an “Adjustment of Immigration Benefit?”
In 2009, a new piece of legislation was passed to specifically address EB-5 family concerns in the event of the primary petitioner’s death. This law (INA 204(I)) allows dependents of a deceased EB-5 investor to apply an “adjustment of immigration benefit” when the situation meets certain conditions.
Namely, the investor must meet the definition of a “qualifying relative” to the applying dependent. This legislation does not currently define this term clearly.
This leaves each case open to interpretation by United States Citizenship and Immigration Services. Investor family members need to apply USCIS’s definition of “qualifying relative” to better understand who this statute protects.
Who Does USCIS Define as Qualifying Relatives for the EB-5 Program?
USCIS policy defines someone who applied for the EB-5 program within a short period of time prior to their death as a “qualifying relative.” It doesn’t matter whether the petition is pending or approved when the investor passes away.
When an investor meets this definition, his or her spouse and unmarried children under the age of 21 are likely eligible to receive EB-5 visas. Once eligibility is determined, the family members of the qualifying relative are permitted to proceed with their U.S. green card application.
Note that at least one applying family member must satisfy the necessary residency requirements as well. Otherwise, members of the deceased investor’s family are essentially allowed to continue with the immigration process as though the investor had not passed away.
How Do Family Members Satisfy Necessary Residency Requirements?
There are two residency requirements that dependents of a qualifying relative must meet:
- The dependent was living in the U.S. when the qualifying relative passed.
- The dependent family member must stay in the United States after the qualifying relative’s death.
USCIS does make an exception for family members who were temporarily abroad when the qualifying relative died. However, it must be proven that the family member’s primary dwelling place is in the United States.
What About Removing Conditions on Conditional Permanent Residency?
For recently married EB-5 investors, matters can be a bit trickier due to a history of fraudulent unions in order to obtain U.S. permanent resident status. USCIS understands that not every case is fraudulent.
However, when the spouse of an EB-5 investor receives conditional permanent resident status as the result of a recent marriage to the investor but then the investor dies, USCIS does open an investigation.
If you are the bereaved spouse of an EB-5 investor who has passed away, the goal is simply to validate the legitimacy of your marriage prior to being granted unconditional permanent resident status.
Denials Are Still at USCIS’s Discretion
The EB-5 Immigrant Investor Program is a complicated one at the outset. The death of an investor can prove to be an additional challenge. Even when surviving family members appear to satisfy all relevant qualifications, USCIS has the authority to deny their application.
Granting permanent U.S. resident status is always ultimately up to the discretion of USCIS officers. If you are the bereaved family member of an EB-5 investor who is a qualifying relative, reach out to an experienced EB-5 immigration attorney for advice. You still have options.
