When must a spouse be included on an EB-5 application?

It is always advisable to list your immediate family members (spouse and children) on the EB-5 application as a matter of full disclosure.

There is no place to include spouse or child information on the I-526 petition. You must disclose this information after the I-526 is approved when you are filing your DS-260 immigrant visa application form (for immigrant visa processing abroad) or the I-485 application for adjustment of status (if you are adjusting status in the United States). There is no problem if you list him and he chooses not to immigrate with you, or at all. It will not affect your case. You must completely and truthfully fill out all application forms, so it is better to properly fill out all the forms with all the information required.

It is recommended that the name of the spouse be stated on the I-526 petition. If the spouse does not apply for conditional permanent residency, then the spouse can be included in the filing of the I-829 petition and the spouse can obtain unconditional permanent residency.

Your spouse can apply as a dependent on your EB-5 application until you become a U.S. citizen. There is a common myth that the unwilling-to-relocate spouse has to be brought into the process through some type of special application. However, under current law, as long as the marriage takes place prior to the approval of the investor''s conditional green card, all that the investor needs to do is disclose the spouse''s information, such as the name and date of birth, etc. No other additional action is needed. The absolute deadline for the spouse to "join" in the process is when the investor becomes a U.S. citizen. By then, a spouse will not be able to file a follow-to-join or accompanying petition, but has to go through the immediate family member route as a spouse of a U.S. citizen. As this process is complicated, legal advise from an experienced immigration attorney should be followed.

You could add him when going through the application for the conditional permanent residency, but including him on the I-526 may make it easier. You are not required to take immediate action on the processing of conditional permanent residency, so if he is not ready to move to the United States, he can wait for awhile.

I would include him on the application, have him immigrate with you and then if he needs to return abroad for an extended time, he can apply for a reentry permit.

If there is a chance that your spouse may join you later, I would list him in the I-526 application. He could delay his immigrant visa processing by notifying the National Visa Center to hold the case for one year at a time. Please coordinate this carefully with your immigration attorney so that his case does not get cancelled inadvertently.

Dependents for EB-5 visas are considered after the I-526 petition has been approved and are included at the consular processing stage.

Best bet is to include him now on the application. It will take at least a year before you get a decision, plenty of time to change his mind. If he does not want it, you can wait until you become a citizen and then apply for him as your spouse.

You do not have to decide about your husband until your EB-5 petition is approved and your case is transferred from USCIS to the national visa center. At that point, you will have to decide whether to include your husband. If you include him now with your I-526 petition, you may remove him later. Conversely, if you do not include him now, you may add him later.