I am currently under adjustment of status through my spouses EB-3 petition. Suppose that I file an EB-5 petition and it is approved, and then the subsequent I-485 filing grants me conditional permanent residency. What happens if the removal of conditions is denied? Can I still avail myself of the old adjustment of status application as long as my spouse maintains employment? What are the potential benefits or drawbacks of my spouse and I pursuing different immigration paths?
In general there is no drawback for spouses to pursue different immigration options. In your case, I do not see a good reason for you to file an EB-5 petition because you are in the adjustment of status process. Unless you foresee some difficulties, you should wait.
If you cannot remove your condition, you could get a new immigrant visa abroad. Your spouse can immigrate with you, or on his or her own, it is your choice.
There is no drawback to spouses pursuing different immigration options and I would advise people to pursue different paths so that you can have fallback options in case one of them does not work out. However, if the case involving your spouse is at the end with the adjustment of status (I-485), then it really does not make sense for you to find an investment, file an I-526 and wait 13 months for that to get approved to file the adjustment of status application. I would wait and see if that gets approved as that gives you unconditional permanent residency rather than temporary, conditional one through EB-5. Also, as EB-5 cases will give you only conditional permanent residency, you have a risk of that condition not getting removed and losing your permanent residency if the business/investment does not create enough jobs. This risk on top of possibly losing your investment amount, incurring further legal fees and hefty filing fees for the removal of condition does not really make EB-5 an option you need to pursue. Of course, depending on your employment stability of your spouse, you pursuit of a separate EB-5 option may be advisable, but you need to consult with an experienced immigration attorney for specific advice that pertains to your particular situation.
Assuming you and your spouse goes through adjustment of status based on separate processing with your spouse through her employer (EB-3) and you through EB-5, and you both get approved for lawful permanent resident stauts, then if after you are denied the removal of condition two years later, you would have to then be sponsored by your spouse who is a lawful permanent resident, on a family-based second preference (F2A). In other words, you would not at that point be able to join your spouse on his or her already approved adjustment of status process.
I think with this information, maybe is the best answer. With complex strategies like this, retaining U.S. immigration counsel is very important.
I counsel my clients to pursue any and all avenues to immigrate to the U.S., if that is their goal. Such advice sometimes includes recommending that each spouse pursue an independent immigration benefit and have a race to see which ones comes out first. Of course, every case is different and presents unique circumstances, so there really is no one size fits all solution. You and your spouse should consult with an experienced EB-5 immigration attorney who can tailor a comprehensive solution to meet your situation. As for the worst case scenario in the event your I-829 is denied, you could wind up in immigration court removal proceedings. If you are eligible for adjustment of status, which you might not be because you previously would have been a conditional lawful permanent resident, you could seek that relief and any other relief available to you, including voluntary departure from the United States. Then, you could process your immigrant visa abroad based on you’re the case of your spouse.
You and your wife can each pursue a different immigration processes. If one application is denied then the spouse can apply for residency on the basis of the spouses approved petition.
