I understand that current EB-5 regulations allow the investor to apply for the visa for the whole family in one petition. However, due special circumstances, my wife will not be able to move in the coming four years. What should be considered when deciding to omit a child or spouse from an 1-526 petition?
Form I-526 does not require you to include information on spouse and children nor does approval of I-526 require your spouse and children to immigrate with you. However, there are various important considerations regarding spouses and children under age 21 in your I-526 petition.
There are many issues you should consider before you decide to immigrate alone at this time. If your child is approaching 21 years old, and if you do not add him or her as your dependent, the child may have been aged out to qualify him orher as your child for immigration purposes. Also, once you have obtained your green card, your immigration petition for your spouse based on the family relationship with you may be delayed due to the visa backlog. Furthermore, both your spouse and child may have difficulty in obtaining a B-1/B-2 visa to visit you in the U.S. once you show your immigrant intent.
Advisably, do not omit your family member on your I-526 petition. You are supposed to provide information on your family on the I-526, even if you are not going to apply for an immigrant visa for them until later. Avoid the appearance of an unintended misrepresentation. An EB-5 attorney can guide you on this so as to procure your petition in an organized and transparent manner.
As an investor you can refer to your family members (as in this case your wife) in your I-526 petition. If the spouse does not obtain the conditional permanent residency them the spouse may be referred to in the I-829 petition to be filed usually three years after the filing of the I-526 petition. The I-829 petition may take several months before threre is an adjudication of the I-829. Therefore, it may take four years before the spouse obtains unconditional permanent residency.
A significant omission can be considered visa fraud and should not be done. All do not need to seek residence, but none should be omitted in disclosure.
You must answer all questions truthfully. The mere fact that your wife is listed on the form I-526 does not mean that she is required to immigrate with you at any particular time. She can immigrate any time later as long as you are a conditional permanent resident or permanent resident at that time (and you are not yet a U.S. citizen).
At the I-526 petition stage you are not required to include information regarding the members of the family that will be included in the subsequent stages of the green card processing.
You will want to discuss this with your attorney. The exact details of your situation will determine your best course of action. It may be that it will make the most sense for your wife to be included in the petition, but that then she will travel in and out of the US using a reentry permit. But, again, the exact facts of her situation will be important in deciding how to best proceed.
You should still list your spouse and child on an I-526 petition. At the immigrant visa application stage, you can list your spouse and child as following to join in.
You should consider that they may not be able to immigrate to the U.S. for many years if they do not immigrate together with the principal applicant.
It will be difficult to add your spouse or child later, and it may be possible to delay their consulate processing for conditional permanent residency. I would work with experienced U.S. immigration counsel to develop a strategy for you and your family.
I recommend including spouse and all children on the filing. Simply including their information does not mean that they have to immigrate to the U.S. following an I-526 approval.
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