As a potential EB-5 applicant, you may be motivated to make an investment in the United States so that your family can enjoy the many benefits of American citizenship. The EB-5 category allows an investor’s spouse and children to obtain a green card as derivative beneficiaries of the EB-5 visa. In the ordinary course of events, the spouse and children of the investor are included on the investor’s I-526 and I-829 petitions and have their conditions removed at the same time as the investor.
But life can be uncertain, and as an EB-5 investor, you should know that if something happens to you, your family can still benefit from your EB-5 investment.
In the event of an EB-5 investor's untimely death before the I-526 petition is approved, the derivative beneficiary’s application or petition may still be approved if the beneficiary:
- Resided in the U.S. when the qualifying relative died; and
- Continues to reside in the United States on the date of the decision on the pending petition or application
If the EB-5 investor dies during the two-year period of conditional permanent residence, the spouse and children of a deceased investor will remain eligible for the removal of conditions. When the time comes to remove the conditional status, the spouse and children simply use Form I-829 to demonstrate that the statutory and regulatory requirements for the removal of conditions have been met.
In fact, within the Form I-829 itself, the United States Citizenship and Immigration Services (USCIS) has provided instructions and a specific category under “Basis for the Petition” for those who are a conditional permanent resident spouse or child of a deceased EB-5 investor.
Your spouse and children would need to submit the Form I-829 with the same evidence and follow the same procedures to demonstrate compliance with the USCIS requirements, as you would have originally done. In general, the Form I-829 petition must indicate that the applicant invested the requisite capital; the capital investment was sustained throughout the conditional residency period; and the requisite number of jobs were created or preserved. The USCIS also recommends that those filing as a spouse or child of a deceased EB-5 investor submit the deceased investor’s permanent resident card and death certificate with the I-829 petition.
Though this scenario is one that most people would rather not think about, it is nevertheless important to note that should this unfortunate possibility ever become a reality, your family members would still be eligible for a green card and all of its benefits.
At the Law Offices of Vaughan de Kirby, we understand how important it is for you and your family to have all the information on the EB-5 visa category. Our San Francisco based attorneys can advise you of your family’s eligibility as derivative beneficiaries of your EB-5 investment and answer your tough questions about the EB-5 program. Contact us today: call us at 415-221-2345 for more information.