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How will the passing of an EB-5 applicant affect his family’s conditional permanent residency?

My husband invested under EB-5 and we currently have U.S. conditional permanent residency with our two small children. My husband has since grown ill and because we are unsure if he will improve, we are making all necessary arrangements. What will happen to my husband’s EB-5 application if he passes before the I-829 is submitted? How would our conditional permanent residency be affected by his passing?

Answers

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    I am very sorry to hear about your husband''s illness and hope he recovers fully. Should the worst happen, however, you will not have to worry about your family''s eligibility to apply for removal of conditions on permanent residence. The Immigration and National Act Section 216(a)(6) addresses this issue and provides that the spouse and children of the entrepreneur who passes away during the period of conditional residence will be eligible for removal of conditions if it can be demonstrated that the conditions for removal have been met. Your petition to remove conditions must be timely filed. Your attorney will know the proper way to notify the USCIS of your family''s circumstances. I urge you to retain an attorney at your earliest convenience so that you can become familiar with the details of your investment and petition and be prepared for the filing. Further, your attorney will help you communicate with the regional center - if your investment is connected to a regional center - to ensure proper return of capital.

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    Michael A Harris

    Immigration Attorney
    Answered on

    USCIS policy will allow you as the derivative beneficiary of your husband''s initially approved I-526 to file the I-829 petition. You will have to still show that the requirements for removal of the conditions have been met.

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    Oliver Huiyue Qiu

    Immigration Attorney
    Answered on

    If your husband unfortunately passes before submitting the I-829, his green card is considered terminated upon his passage. However, you and children could continue to file the I-829. In other words, you could still have the conditions removed if the I-829 is approved.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Let''s hope that you will not need to rely on this, but if the principal investor passes before the I-829 is submitted, you and your children will submit the application and will check the "Part 2, e. I am a conditional permanent resident spouse or child of an entrepreneur who is deceased." With this, obviously you will have to provide supporting documents in addition to all the other I-829 necessary documents regarding the EB-5 investment. Your immigration counsel should guide you on this.

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    Melanie Yang

    Immigration Attorney
    Answered on

    No problem at all. In case the husband passes away before the I-829 is filed, his wife can file the I-829 with two children. The December 2009 USCIS Memo specifically talked about how the investor''s death and divorce will not affect the family member''s removal of conditions on the permanent residency.

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    Anthony Korda

    Immigration Attorney
    Answered on

    The regulations permit a surviving spouse to file an I-829 for herself and children who were included in the original petition in the circumstances you describe.

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