Family Relationships and the EB-5 Visa

• Spouses of the investor may accompany or follow to join an investor who has been granted Conditional Lawful Permanent Residence provided that the investor and the spouse, deemed a derivative beneficiary, were married at the time of the investor’s acquisition of CLPR. DOS and USCIS will usually not recognize common law marriages for the purpose of permitting a spouse to be a qualifying derivative beneficiary. If the relationship is one in common law, the “spouse” of the investor may not acquire Lawful Permanent Resident Status on account of the relationship. Not all valid marriages will be recognized for purposes of U.S. immigration. Investors should consult competent immigration counsel regarding the eligibility of their spouse for immigration benefits.
• Certain children or step-children of the investor may accompany or follow to join an investor who has been granted Conditional Lawful Permanent Residence provided that the investor can establish parentage or step-parentage at the time of the investor’s first admission to the United States as a Conditional Lawful Permanent Resident or adjustment of status to lawful permanent residence. Failure to comply with all applicable requirements may result in the separation of a child from the investor or the investor’s spouse for protracted periods, in some instances for years, while other immigration opportunities are attempted in an effort to reunite the family. U.S. law excludes some step-children and adopted children from eligibility for immigration benefits. Investors should consult competent immigration counsel regarding the eligibility of their children for immigration benefits.
• A “child” is someone under the age of 21 years who is unmarried. If a child becomes age 21 or marries before being admitted to the U.S. as a lawful permanent resident or adjusting to Lawful Permanent Resident Status, the former child, now deemed a son or daughter, may not be eligible to accompany or follow to join the investor. In some circumstances, the Child Status Protection Act may assist a son or daughter to qualify as a child by reducing the deemed age of the son or daughter to less than 21 years. Failure to meet the requirements of the Child Status Protection Act may result in the separation of a son or daughter from the investor or the investor’s spouse for protracted periods, in some instances for years, while other immigration opportunities are attempted in an effort to reunite the family.
• Under some circumstances a child who becomes 21 years of age or marries while holding Conditional Lawful Permanent Resident Status, or the spouse of the investor who is divorced from the investor while holding Conditional Lawful Permanent Resident Status, may be eligible to remove conditions by being included in the investor’s I-829 petition or filing a separate I-829 petition. Failure to meet qualifying conditions, which may not be within the child’s or divorced spouse’s control, and, about which the law and regulations do not provide clear guidance, will result in the child or divorced spouse being placed in removal proceedings and may require the child or divorced spouse to depart the United States.
• Upon the death of an investor holding Conditional Lawful Permanent Resident Status, a spouse and qualifying children of the investor also holding such status are entitled to seek removal of conditions by submission of the same evidence demonstrating compliance with required criteria that USCIS requires of an investor seeking to remove conditions. Failure of each member of the family to establish these criteria will result in the denial of the application to remove conditions, placement of the family members in removal proceedings and their mandated departure from the United States.
• It is unclear under USCIS procedures if a child who becomes a son or daughter before the death of the investor is entitled to seek removal of conditions. USCIS regulations are silent on this matter. If USCIS does not extend this benefit, such a son or daughter will be denied an application to remove conditions and will be placed in removal proceedings and may be mandated to depart the United States.