Under the investment based EB5 visa, dependent family members of the principal applicant are eligible for conditional green cards. For this purpose, dependent family members include spouse and unmarried children under the age of 21 years.
Eventually, these family members can get a permanent resident status by filing an I-829 petition for the removal of the conditions on their residence.
However, a reasonable concern for many qualifying dependents is what happens if the principal EB5 applicant dies during the process?
The Sec 204(l) of the Immigration and Nationality Act
In 2009, Congress introduced a new statutory provision, INA 204(l), to address this situation. With the help of this provision, foreign nationals of a deceased EB5 visa applicant can apply for adjustment of immigration benefit in certain circumstances.
“Foreign nationals related to a deceased EB5 visa applicant can apply for adjustment of immigration benefit in some specific conditions.”
The option seeks to provide relief to those dependent family members of deceased EB 5 applicants that satisfy the definition of “qualifying relative.” However, sin
ce INA 204(l) has not defined “qualifying relative,” we need to understand USCIS decides your status.
Who Is A Qualifying Relative For EB5 Visa Petitions?
According to USCIS, a qualifying relative is a person who was an applicant to the EB5 visa program immediately before his/her death. The EB5 immigration visa covers the family of the principal applicant. Thus, the dependent family members of such qualifying relatives shall have the option to apply for adjustment based on family relationships. Note, such provision shall be available irrespective of whether the petition is pending or approved.
Further, derivative beneficiaries may also immigrate to the US provided any one of the surviving beneficiaries of the qualifying relative meet the residency requirements. In such a case, the petition may allow immigration to the extent it would have been permissible if the principal applicant had not died.
All the beneficiaries don’t need to satisfy the residency requirements. However, at least one dependent family member must meet the eligibility requirements to qualify for adjustment based on family relationships. To ensure you satisfy the eligibility criteria for the EB5 visa program, you need to understand what residency requirement entails.
What Is The Residency Requirement?
To meet the residency requirement, the applicant must satisfy two conditions;
- He/she should have resided in the US at the time of death of such qualifying relative, and,
- He/she continues to live in the US for the adjustment of the immigration status to be decided on the basis of approval of the pending petition.
To understand the logic behind this, we need to look at INA 204(l). According to the Policy Manual, the applicant’s residence is defined as his/her “principal, actual dwelling place, in fact, without regard to intent.”
Thus, if the applicant actually resided in the US during the specified times, he/she satisfies the residency requirement. Further, such a person is eligible to apply for adjustment of immigration status based on the investments in EB5 projects made by the principal applicant.
If an applicant is temporarily abroad at the time of death of the qualifying relative, he/she does not have to provide evidence of residence in the US. Nor does the applicant have to prove lawful residence in the US. However, if a removal order is executed, it shall amount to termination of such an immigrant’s residential status in the US.
Conditional Permanent Resident Status (CPR)
Where the adjustment applicant may have received a permanent residence due to a recent marriage to the applicant, and such petitioning spouse dies before the adjustment is approved, an unconditional permanent residence may be granted to the adjustment applicant.
The adjustment applicant is eligible for a waiver of certain requirements for CPR on account of the marriage termination due to death. If an eligible applicant entered into a bona fide marriage in good faith with a qualifying relative before his/her death, the EB5 visa processing officer may grant you permanent residence without conditions.
“The adjustment applicant is eligible for a waiver of certain requirements for CPR on account of the marriage termination due to death.”
Discretion To Deny
While you may feel you satisfy all the conditions, you may not always get successful petitions. INA 204(l) has given USCIS the power for discretionary denials. The petitions denied on discretionary grounds in the interest of the public are unreviewable.
As you can see, the rules and regulations associated with EB5 visa programs are quite complicated in case of the death of the principal applicant. Thus, it is advisable to consult with an experienced immigration attorney to check where you stand.
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What Happens If The EB5 Applicant Dies During The Process? | Houston EB5 – Houston, TX