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At which stage of the EB-5 application can I add my spouse?

Can I apply as a principal EB-5 investor and not include my husband right away? My husband in currently on H-1B visa and in the EB-2 queue. The backlog for India EB-2 is more than 10 years. I was thinking of not including him for the conditional green card, but then adding him when I get to the I-829 stage. Is this even possible? In the event that my I-829 gets rejected, can my husband can still continue on his H-1B visa?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You will need to add your spouse before adjustment of status or immigrant visa consular processing. Otherwise, you have to process him as a spouse of LPR and the wait time will be long. You still need to name your spouse and kids in your I-526 petition.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The time to add your spouse would be prior to your adjustment of status or immigrant visa processing. That way, once you get the green card, he will also receive one. If you do not include him at that stage, you have to petition for him as the spouse of a lawful permanent resident (F-2A) category, which has a backlog visa number retrogression of about two years. USCIS likely would require your condition to removed before he could receive his green card, but that is a debatable legal issue.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You name your spouse on the I-526 form as well as minor unmarried children. Once the I-526 is approved, then separate cases are begun for you, your spouse and each derivative applying with you. Be sure to name him on the I-526 in any case. You can strategize once the I-526 is approved whether to begin his adjustment or not.

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    Barbara Suri

    Immigration Attorney
    Answered on

    The derivative can file for a green card at the application stage for your green card or later after you get your green card. Your husband can continue on his H visa as long as it is current.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    He can be added at any time as a "following to join immigrant." It is easier to have him join before your conditional card is issued. He might be able to revert back if he has an approved I-140, but if he is a conditional resident, then he has to surrender the green card first.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    You should list your husband as a beneficiary on the Form I-526, which is included in your I-526 petition. After the I-526 petition is approved, you and your husband can proceed with applications for adjustment of status. If your I-829 petition is denied, then your husband could obtain H-1B status again because his permanent resident case is India EB-2. You should have a consultation appointment with an immigration attorney about this situation.

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    Robert West

    Immigration Attorney
    Answered on

    Adding at the I-829 stage not possible. Either you must apply during consular processing or adjustment of status stage, not the I-526 stage. Only the principal is applying at I-526 stage.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    He will need to be included in either the I-485 stage or NVC consular processing. You cannot add him in the I-829 stage because that is already the removal of conditions stage.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Given how USCIS is re-examining a previously approved H-1B, keeping him in the H-1B status may not be as easy as you think. However, if he does not wish to part of your EB-5, we could keep him separate until I-829. Please note that if you pick a good regional center with a stellar approval track record in multiple EB-5 projects, you may be able to trust that it is doing things correctly and not worry about whether your I-829 will be denied. There are several regional centers who put the immigration benefits of their investors as a priority and do things correctly.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    When the case is approved and you are applying for your green cards, that is when you can add your spouse and/or children.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You can add/include dependents at I-526 or NVC/AOS stages. After you obtain CPR status, you cannot add dependents to your case but will have to sponsor them via family-based immigration processes.

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    Robin J Gray

    Immigration Attorney
    Answered on

    You can add your spouse after the approval of your I-526 application either when you complete your DS-260 application with the consulate or, if you are in the U.S., the I-485 application. It would be difficult for you to include your spouse when you are trying to convert your conditional green card to permanent status.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    You can start your EB-5 petition without including your husband right away until your I-526 is approved. However, you need to include him before you apply for a conditional green card (i.e. before filing your I-485), rather than adding him at the I-829 stage. If in the event your I-829 is rejected, your husband can still rely on his H-1B, assuming it has not lapsed. Advisably, consult with an immigration attorney for both the chronological and legal analysis your set of facts require.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    No, you cannot add him at the I-829 stage if he was not a part of the I-526 petition when you filed. However, he can be added to the I-526, continue his EB-2 processing and proceed with the adjustment of status with the petition that has the quicker processing or earlier priority date, etc. So it is either you as the derivative of his EB-2 or he as derivative of your I-526.

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    Stephen Berman

    Immigration Attorney
    Answered on

    The visa petition always lists spouses and children. The spouse and children do not need to file to adjust their status, nor to consular process for the visa.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, you may file an EB-5 investor petition on Form I-526 and not necessarily include your husband. Of course, if you are married you would list your spouse. The fact that your husband is on an H-1B and in the E-2 queue gives him the right to be in the U.S. When you obtain an approval of your EB-5 petition on Form I-526, if you are both in the U.S. in lawful status and assuming visa numbers are available, you can then apply jointly for adjustment of status on Form I-485. There is no reason why you would not want to include your husband at the earliest possible date. You would want to include him at the conditional green card stage. If for whatever reason your I-526 is denied, your husband can still continue his H-1B status. But again, once your EB-5 petition is approved, you should jointly file for adjustment of status.

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