My husband is the primary EB-5 applicant and I am his dependent on the application. We will file our removal of condition applications in June 2020. He is currently in custody after an arrest for an alleged fraud related case, which will not be resolved until next year. Can I still apply for removal of conditions and file separately? Can my husband apply for the same while incarcerated and what are our chances of approval?
As an incarcerated person, it is not worth it to file for removal of conditions. The fact is that such an application is not likely to be approved with his criminal proceeding in progress. As a matter of fact, until there is a final disposition of the criminal case which is positive, there is not going to be real progress going forward.
The biggest issue he will face is coincidently being fingerprinted for biometrics, not sure how that happens if incarcerated. If you were divorced then you can file separately or if he is unable you should at least try.
Staying in the U.S. requires you to file an I-829. You should, however, get an EB-5 and immigration attorneys on board as soon as possible to mitigate the fall out of these charges.
Removal of the condition depends upon the sustainment of the EB-5 capital at risk and job creation as required by the EB-5 regulations. If your husband is convicted of a certain type of crime, he may be removable. USCIS or ICE would issue a Notice to Appear and your husband may have to appear in immigration court proceedings to seek relief from removal. Before he pleads guilty to any crime or makes any deal with respect to his criminal case, he and/or his attorney should consult with an experienced immigration attorney to understand the consequences of such criminal case.
Criminal fraud or civil fraud? Your attorney should assess the specific facts but you have to file the I-829 on time.
