How soon after marriage can a same sex couple apply for the EB-5 visa?
We are a same sex couple from Malaysia and China. We are currently in the United States on student visas. Both of our countries do not recognize same sex marriage. If we get married in the United States, can we apply for the EB-5 visa as spouses? If so, how soon after we get married can we submit our EB-5 application?
You can apply as spouses as long as you are married in a jurisdiction that recognizes same sex marriage. There is no waiting period; you can submit the I-526 petition right away and you should be able to use the Malaysian spouse's country of birth for immigrant visa number purposes, regardless of who is the principal applicant/investor.
As soon as you want. Next day perhaps? Or even before that. First, as a general rule, the law of the place where the marriage was celebrated determines whether the marriage is legally valid for immigration purposes. In your case it does not matter that you are from Malaysia or China; what matters is that you are getting married in the United States where same sex marriage is valid/legal. Second, the spouse of the investor is eligible as a derivative, as long as the marriage takes place before the approval of the investor15729s I-485 (Application to Adjust Status). I hope this helps.
Yes, if you get married in the United States you can file an EB-5 visa petition as spouses. As to when you can submit the application, you can do so as soon as you are married.
John J Downey
You may apply after the ceremony. You might wish to remain in student status and physically present in the United States for your I-485 interview. If you are outside, you may have to interview at the U.S. consulate in your home country where the marriage is not recognized. It may or may not be a problem, but better safe than sorry.
Even though neither of your countries will recognize your marriage, it is irrelevant for U.S. immigration laws. You may marry in any U.S. state and the U.S. federal government will recognize and give full faith and credit to your marriage, including for immigration purposes. For both of you to obtain U.S. lawful permanent residence per the same EB-5 petition, your marriage does not need to take place prior to the filing of the EB-5 petition. The EB-5 petition, Form I-526, does not even request information about marital status. If you plan to adjust status to U.S. lawful permanent residence after the EB-5 petition is approved, you have until the EB-5 principal's adjustment of status application is approved to get married. So, to answer your question exactly, you can submit the EB-5 petition the same day that you are married in any U.S. state.
USCIS regulations accord benefits to same sex married couples in the same way as it would accord to heterosexual married couples. As a legally recognized spouse in the United States, upon marriage there is no time restriction on how soon you can file as spouses (or benefit as a derivative spouse of an EB-5 investor petition).