What are the physical presence requirements for an EB-5 applicant”s family members?

Your wife may choose "follow-to-join" benefits and delay her immigrating to the United States. Please consult an experienced EB-5 attorney.

There are no physical presence requirements for family members not wishing to immigrate to the United States with the principal investor. Your wife is not required to undergo consular processing at the same time as you. She can choose to "follow to join" later. There is an additional process to complete, but it will not cause a significant delay in the ultimate result. Once you and your family members receive U.S. lawful permanent residence, the requirement is that you and they maintain your intention to permanently reside in the United States. You can travel abroad temporarily, but it is not recommended that any single trip exceeds six months.

You do have some flexibility for filing applications for conditional permanent residency with the U.S. consulate, but you cannot wait indefinitely and apply whenever you wish. Once applying for and obtaining CPR, you will be expected to actually enter the United States and remain here for a significant amount of time so that you cannot be considered to have abandoned your permanent residency.

The conditional permanent resident status implies that you wish to become a "permanent" resident. I would have your wife show up for the interview and then travel to the United States. If circumstances arise later that require her to return to the home country, you can always explain that to USCIS.

So you are married and still waiting for your I-526 to be approved. For your wife, she should be able to follow-to-join after your immigrant visa is approved at the consulate. Even after her own immigrant visa is approved, she has another six months to go before the immigrant visa expires. I have never had anyone wait until after I-829 approval to initiate the follow-to-join process, but in theory that is possible. In the alternative, your wife could remain in the visitor visa, too. Just because you gain the green card does not mean your wife has to.

Your wife could delay coming in by 6 -12 months and does not have to consular process with you. Also, even if she does the consular process with you and come into United States, she could go back and stay as long as she comes back every 6 months or so and definitely at least once a year in order to not to be presumed to have abandoned her permanent residency. Now, if she has any intention of obtaining the citizenship after 5 years, providing that your I-829 removal of condition gets approved, then she must show physical presence in U.S. for more than 50 percent of that 5 year qualifying period before filing the N-400 citizenship application.

If your spouse wants to stay longer in her foreign country after your I-526 is approved and six months have elapsed since the principal applicant (you) has obtained the immigrant visa benefit by adjusting status or consular processing - the dependent, in this case your spouse - would have to use the "Follow to join" option. Follow to join is an option offered to family members of the principal beneficiaries of approved preference based immigrant visa petitions. The process of follow to join is intended as a solution for families that may not have the option of traveling to the U.S. together. For a family member to be considered to be "accompanying" the principal beneficiary in a derivative status, (s)he must physically arrive with the principal or must be issued an immigrant visa within six months of the date the principal beneficiary was issued his or her immigrant visa, adjusted status, or registered with the appropriate consulate to confer immigrant status on a qualifying family member. After this six month window, the family member must apply for the benefit of following to join the principal in a derivative status. This entails filing an I-824 form and is a separate process.