The EB-5 Immigrant Investor Program offers a unique opportunity to foreign investors and their immediate family members to obtain U.S. permanent resident status in exchange for a successful qualifying investment in an EB-5 project. An investor can include their spouse and unmarried children younger than 21 on their EB-5 visa application.

At the end of the EB-5 process, the entire family can receive permanent resident status in the United States by each filing an I-829 petition. Investors and their families file the I-829 petition after two years of conditional permanent residency and may remove the conditions if the investment met all the EB-5 criteria, such as the creation of at least 10 new, full-time jobs for U.S. workers.

Unfortunately, however, sometimes an investor may pass away during the EB-5 process. This leaves their dependents not only riddled with grief but also unsure about the future in the United States they had been looking forward to.

Special Legislation for Deceased EB-5 Investors

New legislation to address the concerns of EB-5 families in the event of the primary applicant’s death was enacted in 2009 as part of the Immigration and Nationality Act (INA). The statutory provision, INA 204(l), permits a deceased investor’s dependents to apply “adjustment of immigration benefit” under certain conditions. The main condition is that the investor meets the definition of the term “qualifying relative,” which INA 204(I) does not define. Thus, United States Citizenship and Immigration Services (USCIS) decides who meets the criteria of a “qualifying relative.”

What Are the Requirements to Be a Qualifying Relative for the EB-5 Program?

The term “qualifying relative” refers to the main applicant, not to their relatives who are included in the application. USCIS defines a “qualifying relative” as someone who had applied to the EB-5 program shortly before their death, regardless of whether their petition is pending or approved at the time of death. Spouses and unmarried children younger than 21 of such investors may be eligible to receive EB-5 visas based on their relationship to the qualifying relative.

Eligible family members of qualifying relatives may proceed with their application for a U.S. green card if they satisfy the necessary residency requirements. Fundamentally, qualifying family members will be permitted to proceed with their immigration to the United States as if the principal applicant had not died. It’s not necessary for all family members to meet the residency requirements as long as one does.

What Does the Residency Requirement Entail?

The residency requirement consists of two conditions:

• The family member must have been living in the United States when the qualifying relative passed away.
• The family member must continue to live in the United States following the death of the qualifying relative.

The family member is allowed to have been temporarily abroad at the time of the qualifying relative’s death. The key requirement is that their principal dwelling place was in the United States.

Removing Conditions from Conditional Permanent Residency

Matters are trickier in the case of a recent marriage, given the existence of fraudulent marriages to dishonestly obtain U.S. permanent resident status. If the spouse of an EB-5 investor receives conditional permanent resident status as the result of a recent marriage to the investor and the investor then dies, USCIS will investigate the legitimacy of the marriage before granting unconditional permanent resident status to the bereaved spouse.

USCIS’s Discretion to Deny

Whether the dependent family members of a deceased EB-5 investor are granted U.S. permanent resident status is ultimately determined at the discretion of USCIS officers. Even if a family member seems to satisfy all the relevant requirements, USCIS may still decide to deny their application.

EB-5 is a complicated program to begin with, and the death of an investor only complicates matters further. Any family members bereaved of an EB-5 investor who was a qualifying relative should contact an immigration attorney to help them determine what options are available to them.