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When must the spouse of an EB-5 applicant file the I-485?

My wife and I are both on H-1B visas working in the United States and we filed an EB-5 application for my wife last September. Once the I-526 is approved, do both of us need to file for adjustment of status for the temporary green card at the same time? Will there be any complications if only my wife files an I-485 and I file sometime between I-526 approval and I-829 filing? Will I need to provide more documentation or go to an interview to prove that we are married?

Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You and your wife do not need to file your I-485s at the same time. Assuming your wife is the principal investor, which seems to be the case, there will be no complications if she files her I-485 before you and you file later. The USCIS may decide to interview you if there are questions as to your eligibility or whether the marriage is bona fide. It is likely, however, that your case will be adjudicated through the mail, without personal interview required.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It is possible to delay the filing of the second I-485 if that is what you really want. Regardless of when you file, you will need to show you are legally married to be considered a derivative beneficiary. An immigration attorney can work with you on the specific documents for your situation.

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    John J Downey

    Immigration Attorney
    Answered on

    I would file at the same time just to try and prevent a clerical foul-up. You will need to bring documentation proving your valid marriage the same as you would if she filed an I-130, Petition for Alien Relative.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It is advisable that all family members file the I-485, adjustment of status, at the same time as the same set of documentation and other additional information will be used. However, in the event that the filing is broken, the documentation process may involve repetitive procedures, delays, and additional costs. Consult an attorney prior to taking any action on your ideas.

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    Jimena G Cabrera

    Immigration Attorney
    Answered on

    The spouse of an EB-5 applicant/investor may apply for adjustment of status at any time provided that the marriage took place before the principal immigrant/investor's application to adjustment of status was granted. If you decide to apply for AOS within six months of your wife becoming a lawful permanent resident, then you just need to file the application for AOS. If it is longer than six months, then you need to file the form I-824 (Application for Action on an Approved Application) to start a process called "following to join." You should contact the immigration attorney with whom you are working for further details.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You might be eligible to file derivatively later after your spouse, but why would one delay?

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    It would be better if you both adjust at the same time, unless there is a reason not to. I have found that USCIS gets confused if the family members' approval dates are different and this confusion delays processing times at the I-829 stage.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    It is best to file at one time, with one being the principal and the second being a derivative. It would be rather odd to separate the two it does not make sense and only forces you to complete the same process twice.

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    Anthony Korda

    Immigration Attorney
    Answered on

    Unless there is some pertinent reason why your spouse would not wish to become a permanent resident (tax liability as an example) she should apply to adjust status at the same time as you (the petitioner). If you provide documentary evidence of marriage, together with proof of the I-526 approval, the cases should be processed together. There are usually no interviews.

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