A friend of mine is a principle EB5 investor. He applied for a green card for himself, his wife and his child. He is running a business in China and has traveled back and forth several times a year for the last several years. He has a hard time committing to all this traveling, but there is no confirmation on how much longer they need to wait for the permanent green card. I would like to know if he can transfer the principle investor title to his wife or child (no longer a minor). If so, how? Are there any penalties for doing this?
Based on the facts you present, the EB-5 principal investor should file the I-829 for themselves, spouse and children (who are able to apply). Once the unconditional permanent residency is obtained by all family members, the principal investor may decide to spend most of their time in their home country with the possibility of losing their U.S. residency while the other family members may keep their U.S. permanent residency.
Generally, a transfer of the principal petitioner status is not transferable. Since the petition has not been approved, consider withdrawing the petition. Also, let the wife file separately and re-designate her as the principal petitioner while the husband and child be the beneficiaries. Advisably, consult an EB-5 attorney for further analysis of your facts as soon as possible particularly because of the timing issue.
Unfortunately, the EB-5 petition that he filed is non-transferable to another person. You would have to file based on your own capital contribution to the business. You might be able to substitute him in a corporate sense, but you will have to personally invest and file a new petition.
A principal EB-5 investor cannot transfer his case to a relative or any other party under the current law. A wife or child must file a new petition on its own merits if the principal EB-5 investor can withdraw the funds early under the subscription agreement from a regional center project (if filed through a regional center). It will be a new case with a new waiting line.
It is not possible without filing a new petition. Then, the wait would be even longer.
The short answer is the principal beneficiary of an approval EB-5 Investor Petition on Form I-526 cannot transfer same to his wife or child. The wife and child would be dependent beneficiaries. This is a real problem, particularly given the growing backlog under the quota for Chinese nationals. It is somewhat possible that the new EB-5 reform legislation will include a provision that will allow a principal EB-5 investor to transfer his or her approved petition and priority date to a dependent child or spouse, but that is not yet certain.
There is no option to transfer, but he could withdraw his Petition and start the process with his spouse or child as the Investor. Depending on whether this is a direct investment or a regional center investment, getting the initial invested capital returned to re-invest may be an issue.
Presently, there is no way to transfer the petition to another family member, including the possibly aged-out child. However, there is a movement to try and accomplish this for Chinese applicants, many of whom have filed only so they can help their children emigrate. Presently one has to withdraw, gift the investment interest to the new petitioner, and that petitioner has to refile but is not able to keep their place in the waiting line. So, by refiling, the person has to reset the clock.
Unfortunately, the petitioner investor cannot simply transfer the case to someone else. He could withdraw and his wife or his child could take the money if he could get it back under the subscription agreement, and file a new case under the new petitioner name. But, it will be a brand-new case with a new wait time.
