In a recent rule proposing to reduce some EB-5 filing fees and introducing new ones, the Department of Homeland Security (DHS) and the United States Citizenship and Immigration Service (USCIS) also propose changes and clarifications for I-829 petitions for dependent spouses and children of EB-5 investors.
The I-829 is the third and final form that EB-5 petitioners file as part of their application process. This procedure removes conditions on permanent resident status for investors who already have a conditional green card, provided their EB-5 investment fully complies with the visa program.
The guidance indicates that if an EB-5 investor dies or abandons their application but would have qualified for permanent residence based on a sustained investment and the creation of jobs, their dependents can still file an I-829 independently.
“It clarifies when and how derivative family members may file to remove conditions on residency independently in specific situations where the principal investor has passed away or chooses not to file Form I-829,” says EB-5 attorney Matthew Kolodziej from JIA Law Group.
U.S. immigration lawyer Elissa Lu from Law Office of Lu & Associates welcomes the suggestions. “The proposal reflects a fair and pragmatic approach to streamlining the process for principal investors and their families, particularly in cases involving the death of the principal.”
What does the I-829 guidance suggest?
Jennifer Hermansky, EB-5 attorney and EB-5 Committee chair for the American Immigration Lawyers Association (AILA), summarizes the proposed changes as:
- Where the dependent family members cannot be included in the Form I-829 petition because the investor is deceased, all dependents (spouse and children) of the deceased investor may be included on a single Form I-829 petition.
- Each dependent must file a separate Form I-829 petition in all other situations in which the investor’s spouse and children are not included in the investor’s Form I-829 petition.
- When a derivative beneficiary files a Form I-829 petition separately from the principal investor who does not file a Form I-829 petition (whether because of death or otherwise), the timeframe to file such a petition is any time when the principal investor would have been required to make such a filing.
The guidance could complicate timing for dependents, an attorney says
Lu says there is a practical timing concern affecting these petitions today.
“In many EB-5 cases, the principal investor and derivative family members do not receive their conditional permanent resident status simultaneously. Sometimes, spouses or children immigrate months or even years after the principal, resulting in different two-year conditional periods.”
Lu cautions that the proposed guidance could further hamper situations like these for dependents.
“Under the proposed rule, a derivative who files a separate Form I-829 petition would be held to the same filing deadline as the principal investor—even if that derivative’s own two-year conditional period has not yet expired. This could create procedural hardship for the derivative family members.”
She suggests that the DHS adjust this part to address the timing discrepancy.
“We hope DHS will clarify or amend the rule to address this timing discrepancy. Specifically, DHS should confirm that a derivative’s separately filed Form I-829 filing deadline is tied to that derivative’s own conditional permanent residence period, not solely to the principal investor’s timeline—particularly in cases where the derivative’s admission to the United States occurs after the principal’s.”
As with the rest of the proposed rule, the public can submit suggestions on this guidance until Jan. 23.
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