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 Jatoi & de Kirby, APC, 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.