If I divorce my spouse before our I-829 is approved what happens to her application?

You can submit your I-829 application separately.

A former spouse can be included in the petition or she can file her own petition to remove the condition. The likely changes to the EB-5 law should not affect you or your wife. If she does not file to remove the conditions, she could be put into removal proceedings, so the risks in not filing are greater than the risks of filing.

Generally, the family law of most states will hold that the wife is entitled to a permanent green card through the I-829 filing, which was done prior to the divorce proceeding. There is a mirror-like interpretation under the immigration law that she would be entitled to a permanent green card because the marriage was genuine even though it did not last. The I-829 filing is essentially a removal of conditions issue almost like I-751 in which a spouse can obtain permanent green card despite the divorce if the marriage is genuine. Future changes to EB-5 are not likely to retroactively change the program to the extent that it will deprive your ex-wife her right to secure a permanent green card.

I-829 instruction states as follows: If you are the former conditional permanent resident spouse of an entrepreneur, who was divorced from the entrepreneur during the period of conditional permanent residence, you may still be included in the entrepreneur petition or you may choose to file a separate petition. Thus, if you wish to include your former spouse in your own petition, you may do so. Or, your spouse may wish to file her own petition stating that the divorce occurred while in conditional residency.

The former spouse of an entrepreneur, who was divorced from the entrepreneur during the period of conditional permanent residence, may still be included in the entrepreneur''s petition or may choose to file a separate petition.

The I-829 instructions are clear on this point. If you are the former conditional permanent resident spouse of an entrepreneur, who was divorced from the entrepreneur during the period of conditional permanent residence, you may still be included in the entrepreneur petition or you may choose to file a separate petition.

Your ex-wife would file her own I-829 form and would choose the "divorced status" on the I-829 form. Her filing of the I-829 does not impose on your application; this is a situation that was contemplated by USCIS and occurs regularly.

If you divorce your wife, you can still include her in your I-829 filing. Alternatively, she can file a separate I-829 although that would add to the costs.