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What happens if the main applicant on an I-526 petition dies?

What happens if the main applicant on the I-526 petition dies before the petition is approved? Can the spouse be substituted in place of the main EB-5 applicant?

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The spouse cannot be substituted if the petitioner dies before the I-526 is approved and the conditional green cards are issued. You may have to transfer the investment to the wife and she can file a new I-526 with new paperwork.

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    Rachel Lew

    Immigration Attorney
    Answered on

    8 CFR 216.6 (a)(6) only address that if an entrepreneur dies during the prescribed two-year period of conditional permanent residence after the approval of the I-526 petition, the spouse and children of the entrepreneur will be eligible for removal of conditions if it can be demonstrated that the conditions set forth in paragraph 8 CFR 216.6 (a)(4) have been met. If the I-526 petitioner dies before the I-526 petition is approved, the derivative beneficiaries (spouse and unmarried children under age 21) are not included in the categories listed in INA section 204(l) addressing the issue on death of an immigrant principal applicant. According to the USCIS Policy Memorandum dated December 16, 2010, the new section 204(l) of the Act changes the governing law with respect to an alien who is seeking an immigration benefit through a deceased "qualifying relative." Section 204(l) now permits the approval of a visa petition or refugee/asylee relative petition, as well as any adjustment application and related application, if the alien seeking the benefit: (1) Resided in the United States when the qualifying relative died; (2) Continues to reside in the United States on the date of the decision on the pending petition or application; and is at least one of the following: a.. The beneficiary of a pending or approved immediate relative visa petition; b.. The beneficiary of a pending or approved family-based visa petition, including both the principal beneficiary and any derivative beneficiaries; c.. Any derivative beneficiary of a pending or approved employment-based visa petition; d.. The beneficiary of a pending or approved Form I-730, Refugee/Asylee Relative Petition; e.. An alien admitted as a derivative "T" or "U" nonimmigrant; or f.. A derivative asylee under section 208(b)(3) of the Act. It appears that Congress did not intend to include derivative beneficiaries of an I-526 petition principal applicant. Additionally, the principal applicant has not yet been determined a qualifying relative during the pendency of the I-526 petition. Therefore, the spouse is not able to be substituted in place of the EB-5 principal applicant.

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    John J Downey

    Immigration Attorney
    Answered on

    Possibly if you send in an amendment to the petition, but the spouse must prove the same qualifications, e.g. source of funds, accredited investor, etc. Seek a qualified EB-5 attorney for assistance.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You would need to analyze the Section 204(l) guidelines, which may work, but only if the spouse is in the United States when the petitioner died.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    As a general rule, a petition expires when the applicant dies. I do not believe I have read anything that would distinguish the I-526.

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