How will the passing of the main EB-5 applicant affect the green cards of his children?

Hopefully, in this scenario, the children were listed in the I-526 petition of the main applicant. Since the investment had been made, the children should be able to adjust. Also, relevant documentation must be included why the main applicant is not part of the I-829. On the issue of whether the money can be returned to the spouse, look at the agreement itself for what constitutes the basis for an exit strategy. In most cases, provisions will be made in the agreement to address the death of a principal. It is common that return of the investment fund is not an option as the money would have been invested right after the I-526 is approved. Advisably, consult the EB-5 attorney associated with the case and the Regional Center (if one is involved) to look over the agreement so that you can ascertain the rights of the parties.

By regulation, if the principal investor passes away after receiving conditional lawful permanent residence, the dependent conditional lawful permanent residents still can file Form I-829 for condition removal and the appropriate time. You will need to consult with an attorney to protect the survivor rights vis-a-vis the regional center/EB-5 project. Those procedures likely will be determined by the agreements signed by the principal investor.

Notwithstanding the death of the principal applicant, the dependents can file the I-829 petition within 90 days before the second anniversary of the conditional resident status, and meet all the requirements to remove the conditions, including the requirements of job creation and sustaining capital investment. Return of capital may be paid to the decedent's estate.

The passing of the EB-5 applicant could adversely affect the eligibility of the spouse and minor children. However, since apparently all parties have already acquired conditional permanent residency, the passing of the principal applicant should not affect the ability of the children to remove their conditional permanent residency. Under certain conditions the investment could be changed to one of both children. The investment would be returned to whoever is the owner of the investment, be that the children or the spouse.

You are able to file the I-829 as the child of the EB-5 applicant who passed. You will check the box #3 in Part 2 of the I-829 form. Of course, the business-side requirement of job creation and the investment being maintained must be shown regardless. Please consult with your EB-5 immigration lawyer to make sure that subscription agreement and the limited partnership allows some provision that the investment be actively maintained after the investor passes. How the investment fund is returned also will be dictated by the subscription agreement.

The passing of the investor should not affect the children's green cards. The I-829 form will have to be submitted for each child and there is a box on the form that needs to be checked to indicate that the petitioner is deceased. The fund investment depends on the agreement with the regional center. Usually the funds go through the probate process and are distributed to the heirs. Seemingly it will be the spouse; however, if the petitioner had a will distributing the funds differently, then the probate court would determine who should receive the investment funds.

Regulations governing I-829 provide: "If an entrepreneur dies during the prescribed two-year period of conditional permanent residence, the spouse and children of the entrepreneur will be eligible for removal of conditions". They will still have to meet the remaining removal conditions for the EB-5 (i.e., job creation requirement, etc).