By Jia Zhao
Under the EB-5 program, the qualifying dependents of the immigrant investor ("Principal Applicant"), namely the spouse and unmarried children under age 21, are eligible to obtain conditional permanent resident status based on the qualifying investment of the principal applicant. Eventually, they can obtain permanent resident status with an approved I-829 petition that removes the conditions on their residence.
Nevertheless, a realistic concern remains for the dependent family members: what will happen to them in the unfortunate event of the death of the principal applicant?
Under section 204(l) of the Immigration and Nationality Act, dependent family members of a pending or approved petition for classification under section 203(b), shall have such petition under section 203(b) or an application for adjustment of status based upon the family relationship adjudicated, even in the event of the death of the principal applicant, if the dependent family members meet the residency requirement. To meet the residency requirement the dependent family members must (1) reside in the United States at the time of the death of the principal applicant, and (2) continue to reside in the United States on the date of approval on the pending application.
This means that the dependent family member of an I-526 petition based on a qualifying investment under section 203(b)(5) of the Act is eligible to have the pending I-526 Petition or I-485, Application for Adjustment of Status, adjudicated even if the principal applicant is deceased, as long as the dependent family member (1) resided in the United States at the time when the principal applicant became deceased, and (2) continues to reside in the United States.
As such, in order for the dependents to be eligible for such benefits under section 204(l) of the Act, the dependents of the EB-5 investor must be residing in the U.S. in valid nonimmigrant status at the time of the investor’s death.
Assuming the EB-5 petition was approvable when filed, and is thereafter approved by USCIS, the investor’s dependents may be able to proceed with the filing of Form I-485 on the basis of the investor’s I-526 Petition. In fact, the law permits the spouse or child of a principal alien (i.e., the EB-5 investor) to accompany or follow to join a principal alien.
If any one beneficiary meets the residence requirements of section 204(l) of the Act, then the petition may be approved, despite the death of the investor, and all the beneficiaries may immigrate to the same extent that would have been permitted if the investor had not died. According to USCIS guidance, it is not necessary for each beneficiary to meet the residence requirements in order to have the benefit of section 204(l), so long as one beneficiary has met them.
Additionally, dependents of the principal applicant who intend to enter the United States through consular processing and who have not obtained the immigrant visa to enter the United States at the time of the death of the principal applicant may not be covered under this section, as the dependents may not be able to satisfy the residency requirement.
It is also important to note that section 204(l) only entitles the eligible dependent family member to have the pending application adjudicated, but does not ensure the approval of such application. In order to have their I-526 Petition, or Adjustment of Status Application approved, the dependent family members of the deceased principal applicants need to make sure they are not subject to any of the inadmissibility grounds and are not likely to become a public charge. Also, the I-526 Petition must have been approvable when filed and continue to be approvable.
Under 8 C.F.R. §216.6(a)(6), if the principal applicant dies at the time when the dependents have obtained conditional permanent resident status (meaning after entrance to the U.S. on an immigrant visa or I-485 Application approval), but prior to filing the I-829 petition to remove condition on residence, or while the I-829 petition is pending, the dependents may still be eligible to have the petition adjudicated and eventually obtain permanent residence, notwithstanding the death of the principal applicant.
Nevertheless, the qualifying family members must file the I-829 petition within 90 days before the second anniversary of the conditional resident status, and meet all the requirements to remove the conditions, including the requirements of job creation and sustaining capital investment. This is the same requirement as if the principal applicant had been alive.
As long as these requirements can be met, the dependents can then have their conditions on their residence removed and obtain full permanent resident status.