How would the legal status of my fiancé affect my EB-5 application?

The status of your fiancé will not affect your EB-5 application, but it may affect his application for permanent resident status.

Under the new law, if your husband is out of status for less than 180 days since his last entry, he can be included in your adjustment application. If not, he is not eligible to adjust and must apply for an immigrant visa as a following to join applicant, but he may also have three or ten year bar issues, depending on whether there has been a USCIS determination on this status.

We would need to analyze the out-of-status times for your fiancé to determine if eligible to adjust. His lapses in status would not affect your application. He is allowed up to 180 days of working without authorization OR overstaying a nonimmigrant status. If at all possible, make sure he does not exceed this.

Your future spouse will be chargeable to the Hong Kong visa quota (cross chargeability) which means he can process his visa at the same time as you and not be subject to the China waiting list. His being out of status will not affect the adjudication of your I-526 petition. He should try to avoid accumulating more than 180 days in the country without status. If you concurrently file Form I-526 with Form I-485, he should be able to take advantage of provision 245(k), which will forgive less than 180 days out of status for someone adjusting status pursuant to an employment-based petition.