Questions & Answers

How should an EB-5 dependent who needs a J-1 waiver file for permanent residency?

I filed an EB-5 application in 2017. My case is still pending. I got married later that year. My wife is on a J-1 visa and is subject to the two-year home residency rule. She intends to start her waiver application next year. If my I-526 gets approved this year, will there be any benefits to include her in my I-485? Should we wait until she gets a waiver and then file a DS-260?

Answers

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on May 17, 2019

  Depending on the reason why she was initially subject to the two-year home residency requirement, you may want to seek advice from an experienced immigration attorney about the best timing and best method to submit the waiver application. Such an application typically requires a no-objection statement from the home country government and a favorable recommendation from the U.S. Department of State. On the basis of the waiver application and supporting documents it is USCIS, under the Department of Homeland Security, that ultimately will adjudicate, and hopefully approve, the waiver application.

• Charles Foster

  Immigration Attorney

  Answered on May 15, 2019

  Should one get their EB-5 I-526 petition approved, your wife would not be able to concurrently file her application for adjustment of status on Form I-485 until she either obtains a waiver of the two-year foreign residency requirement or she returns home and completes the required two-years of physical presence in her home country. Then, she files for her immigrant visa as an alien "following to join" by filing her immigrant visa application on Form DS-260, after USCIS notifies the appropriate consulate post which would have to be requested.

• Julia Roussinova

  Immigration Attorney

  Answered on May 14, 2019

  A waiver must be filed and granted first. You should definitely include your spouse's information in your I-485. Please hire an experienced immigration attorney to determine what waiver your spouse needs to file, i.e. a no objection.

• Marko Issever

  EB-5 Broker Dealer

  Answered on May 14, 2019

  Unfortunately, your marriage to your spouse does not qualify her for a waiver. There has to be another pressing reason such as extreme hardship, persecution, etc. If and when she qualifies and obtains the waiver, you could then proceed to include her. Otherwise, she might have to go back and stay overseas and fulfill her home residency requirement for two years.

• Daniel A Zeft

  Immigration Attorney

  Answered on May 14, 2019

  Your wife must obtain a waiver of her two-year home residency requirement before she can file an I-485 application or before she can proceed with the process of applying for an immigrant visa.

• Lynne Feldman

  Immigration Attorney

  Answered on May 13, 2019

  Be sure to name her on the I-526. She may qualify for a no-objection letter if not a physician.

• Belma Chinchoy

  Immigration Attorney

  Answered on May 13, 2019

  The waiver needs to be addressed first. Consult with an attorney to determine the timing of applications.

• Hassan Elkhalil

  Immigration Attorney

  Answered on May 13, 2019

  I will include her on the I-485. I will use the I-485 as one of the reasons to get the approval of the waiver.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on May 13, 2019

  First, in order to get a waiver you have to decide on what basis she might be eligible. Is a no-objection letter likely to succeed, or does she qualify for an extreme hardship or persecution waiver? Then the next issue is timing. If you get a waiver, does she need to extend her J-1 or travel abroad? And finally, if possible, you absolutely want to try and include her in your adjustment application, if she is eligible.

• Barbara Suri

  Immigration Attorney

  Answered on May 13, 2019

  One must qualify for the benefit at the time that one files for the benefit. That means that you may file her adjustment application if and when the waiver is final. Or later, file the DS-260 when she qualifies.