Process for EB-5 Investor’s Spouse to Obtain a United States Green Card

Imagine opening the doors to endless opportunities and a secure future in the United States. The EB-5 visa program offers not just the chance to live and work in the U.S., but also a path for your family to join you in this journey.

But What is the EB-5 Visa Program? 

The EB-5 visa program, established by Congress in 1990, provides a method for eligible Immigrant Investors to become lawful permanent residents by investing in a new commercial enterprise that creates or preserves at least 10 full-time jobs for qualified U.S. workers. This program is particularly appealing as it not only allows for direct investment but also provides a straightforward path to obtaining a green card, which ultimately leads to U.S. citizenship.

How can the Spouse  of an EB-5 Investor Obtain a Green Card? 

For the spouse of an EB-5 investor, obtaining a green card is an integral part of the process. The journey involves several key steps, beginning with ensuring that the marriage is legally recognized and properly documented. Depending on when the marriage takes place—whether before or after the EB-5 petition approval—the specific procedures and necessary documentation may vary. Ultimately, this process culminates in the filing of the necessary petitions and forms, such as Form I-130 for an alien relative and Form I-485 for adjustment of status, ensuring that both the investor and their spouse can legally reside and work in the United States.

This guide will walk you through the detailed steps and requirements to help make this transition as smooth and efficient as possible.

 

Key Steps for the Spouse to Obtain a Green Card

When navigating the green card process as a spouse, timing is crucial. Whether you marry before, during, or after your EB-5 approval, each scenario involves specific steps to ensure both you and your spouse can secure green cards. Here’s a breakdown of what you need to know at each stage.

Marrying Before EB-5 Approval for Simultaneous Green Cards

If you marry your spouse before your EB-5 petition (Form I-526) is approved, you can include them in your initial application. This allows both of you to apply for green cards simultaneously. Here’s how it works:

• Inclusion in I-526 Petition: When you submit your Form I-526, include your spouse’s information and required documents, such as a marriage certificate and proof of a bona fide marriage.
• Concurrent Filing: If you are already in the U.S., you can file Form I-485 (Application to Register Permanent Residence or Adjust Status) for both you and your spouse at the same time, assuming your priority date is current.

Marrying After EB-5 Petition Approval but Before Green Card Issuance

If you marry after your EB-5 petition is approved but before you receive your green card, your spouse can still be included in the green card process. Follow these steps:

• Update USCIS: Notify USCIS about your marriage by submitting a copy of your marriage certificate and any additional required documentation.
• Consular Processing or Adjustment of Status: Depending on your location, your spouse will either go through consular processing (if outside the U.S.) or file Form I-485 (if inside the U.S.).
• Documentation: Provide necessary documents such as marriage certificates, proof of relationship, and any additional evidence required by USCIS or the U.S. consulate.

Marrying After Green Card Issuance and the Subsequent Need for Spouse Sponsorship

If you marry after you have already received your green card, you will need to sponsor your spouse for their own green card. The process involves the following steps:

• File Form I-130: Submit Form I-130 (Petition for Alien Relative) to USCIS to establish your relationship.
• Wait for Visa Availability: Your spouse will be placed in the family-based second preference (F2A) category, which may have a waiting period depending on visa availability.
• Consular Processing or Adjustment of Status: If your spouse is outside the U.S., they will go through consular processing. If they are inside the U.S., they will file Form I-485 once a visa number becomes available.
• Documentation: Provide proof of your marriage, evidence of your permanent resident status, and other supporting documents as required.

For more detailed information and the latest updates, refer to the official USCIS website here.

Requirements and Documentation

To successfully apply for a green card, gathering the correct documentation is key. Each document you provide helps establish the authenticity of your marriage and supports your application. Here’s a quick overview of the essential requirements and the paperwork you’ll need.

1. Marriage Certificate

• Importance: An official marriage certificate is crucial as it legally validates your marriage. This document is essential for all stages of the green card application process.
• Ensure the certificate is an original or a certified copy issued by a government authority.

2. Proof of Genuine Marriage

• Types of Evidence: To prove that your marriage is genuine and not solely for immigration purposes, you need to provide:
  • Photographs of you together at various occasions.
  • Joint bank account statements.
  • Lease or mortgage documents showing joint ownership.
  • Affidavits from friends and family attesting to your relationship.

3. Joint Ownership and Financial Documents

• Examples: Jointly owned property deeds, car titles, or joint bank account statements are strong evidence of a shared life and financial responsibilities.
• Details: Include as many relevant documents as possible to show financial interdependence.

4. Divorce Certificates (if applicable)

• Documentation: If either spouse was previously married, you must provide certified copies of divorce decrees or death certificates for all prior marriages.
• Importance: This ensures that all previous marriages were legally terminated before the current marriage.

5. Children’s Birth Certificates

• Importance: If you have children together, include their birth certificates as evidence of your relationship and family unit.
• Details: Birth certificates should be original or certified copies and must include both parents’ names.

6. Passport-Style Photos of Both Parties

• Requirements: Submit passport-style photos of both the investor and the spouse. These photos must meet USCIS specifications, which include:
  • A plain white or off-white background.
  • Full-face view directly facing the camera.
  • Size: 2 inches by 2 inches.
  • Recent (taken within the last six months) and clearly depict the applicant’s current appearance.

Filing Form I-130: Petition for Alien Relative

To bring your spouse to the United States and begin the process of obtaining their green card, you must file Form I-130. This form establishes your relationship and initiates the process for your spouse to become a lawful permanent resident. Here’s a concise guide on the steps and requirements involved.

Prerequisites for Sponsoring a Spouse

• Eligibility Criteria: The sponsoring spouse must be a U.S. citizen or a lawful permanent resident (green card holder). The sponsor must also prove their status by providing a copy of their birth certificate, naturalization certificate, or green card.

Completing and Submitting Form I-130 and I-130A

• Step-by-Step Guide:
  • Form I-130: Fill out the form with accurate information about both the petitioner (sponsor) and the beneficiary (spouse). Include details such as names, addresses, and dates of birth.
  • Form I-130A: This supplemental form provides additional biographical information about the beneficiary and is required if the spouse is residing outside the U.S.
  • Submission: Attach all necessary supporting documents, such as marriage certificates and proof of the sponsor’s status. Pay the required filing fee and submit the forms to the appropriate USCIS office.

Special Considerations for Overseas Spouses

• Additional Requirements:
  • Consular Processing: If the spouse resides outside the U.S., they will go through consular processing. After Form I-130 is approved, the case is transferred to the National Visa Center (NVC) and then to the appropriate U.S. consulate.
  • DS-260 Form: The spouse must complete the DS-260 Immigrant Visa Application form and attend an interview at the U.S. consulate.

Evidence Needed for Form I-130 Approval

• Supporting Documents:
  • Proof of Sponsor’s Status: Copy of the sponsor’s U.S. birth certificate, naturalization certificate, or green card.
  • Marriage Certificate: Original or certified copy to prove the marriage is legally valid.
  • Proof of Genuine Marriage: Photos, joint bank accounts, joint leases or mortgages, and affidavits from friends and family.
  • Divorce Decrees (if applicable): Certified copies of divorce decrees from any prior marriages.
  • Passport-Style Photos: Recent photos of both the petitioner and the beneficiary that meet USCIS specifications.

For more detailed information and the latest updates, refer to the official USCIS website here.

Form I-485: Adjustment of Status

Form I-485 allows an individual to apply for lawful permanent resident status while staying in the United States. Here’s how the spouse of an EB-5 investor can be included in this process.

Adding the Spouse to the EB-5 Investor’s I-485 Application

• Process for Including the Spouse: If the EB-5 investor’s I-526 petition is approved and they are filing Form I-485 to adjust their status to a lawful permanent resident, they can include their spouse in the application.
  • Concurrent Filing: If both the investor and spouse are eligible, they can file their I-485 forms simultaneously. This is often referred to as concurrent filing.
  • Documents Required: Along with Form I-485, the spouse must submit supporting documents, including:
    • A copy of the marriage certificate.
    • Proof of the principal applicant’s (investor’s) I-526 approval.
    • Evidence of lawful entry into the U.S. (e.g., visa stamp, I-94 form).
    • Passport-style photos.
    • Proof of financial support (Form I-864, Affidavit of Support).
  • Biometrics Appointment: Both the investor and spouse will need to attend a biometrics appointment for fingerprinting and photographs.

Procedures if the Spouse is Already in the U.S. Under a Different Visa

• Steps to Adjust Status for Spouses on a Different Visa:
  • Eligibility Check: Ensure that the spouse is eligible to adjust status. They must be in the U.S. lawfully and have maintained their current visa status.
  • Filing Form I-485: The spouse must file Form I-485, along with the required documents, including:
    • Proof of current visa status.
    • A copy of the marriage certificate.
    • Proof of the principal applicant’s (investor’s) I-526 approval.
    • Passport-style photos.
    • Medical examination report (Form I-693).
  • Concurrent Filing with I-130: If the spouse entered the U.S. under a different visa (such as a tourist or student visa), they may need to file Form I-130 (Petition for Alien Relative) concurrently with Form I-485.
  • Interview: The spouse may be required to attend an interview at a USCIS office to verify the authenticity of the marriage and the eligibility for adjustment of status.
  • Approval: Once approved, the spouse will receive a green card, granting lawful permanent resident status.

Alternative Visa Options

If the primary EB-5 path is not feasible, there are alternative visa options for the spouse of an investor.

Securing a Non-Immigrant Visa for the Spouse

Non-immigrant visas allow the spouse to stay in the U.S. temporarily while awaiting the green card process. Some common non-immigrant visas include:

• B-2 Tourist Visa: Allows the spouse to visit the U.S. for up to six months.
• F-2 Visa: For spouses of F-1 student visa holders.
• H-4 Visa: For spouses of H-1B visa holders. This visa allows them to live in the U.S. but typically does not permit work unless the primary H-1B holder has started the green card process.
• L-2 Visa: For spouses of L-1 visa holders, which allows them to work in the U.S. with an employment authorization document (EAD).

Understanding Visa Backlogs and Timelines

Visa availability can be subject to backlogs, especially in high-demand categories.

• Priority Dates: The date on which the petition is filed, which determines your place in line for visa processing.
• Visa Bulletin: Published monthly by the U.S. Department of State, it shows the cut-off dates for different visa categories and countries. This helps applicants understand how long they may have to wait.
• Processing Times: Can vary based on the visa category, country of origin, and USCIS workload. Backlogs are common in the family-based categories, so understanding these timelines is crucial for planning.

Considering the FB-2A Category for Spouse of Permanent Residents

The FB-2A category is designated for spouses and unmarried children (under 21) of lawful permanent residents (green card holders).

• Eligibility: The sponsoring spouse must be a lawful permanent resident.
• Process: The sponsor must file Form I-130 (Petition for Alien Relative). Once approved, the beneficiary is placed in line for an immigrant visa number.
• Advantages: This category often has shorter wait times compared to other family-based categories and may provide a faster path to a green card than waiting for the EB-5 process to complete.
• Considerations: It’s essential to monitor the Visa Bulletin for current processing times and availability.

Final Considerations

When navigating the process of obtaining a green card for the spouse of an EB-5 investor, it’s important to consider the following key points.

Consulting an Immigration Attorney for Tailored Advice

• Importance of Seeking Professional Legal Advice: Immigration laws and procedures can be complex and subject to change. An experienced immigration attorney can provide personalized guidance and help ensure that all paperwork is correctly filed, reducing the risk of errors that could delay the process.
  • Benefits of Professional Assistance: Attorneys can help interpret the law, prepare applications, and represent you in dealings with USCIS. They can also provide advice on the best visa options for your specific situation.

Monitoring the Visa Bulletin for Wait Times

• How to Stay Updated with the Visa Bulletin and Its Significance: The Visa Bulletin, published monthly by the U.S. Department of State, provides crucial information on visa availability and priority dates for different immigration categories.
  • Using the Visa Bulletin: By regularly checking the Visa Bulletin, you can track the progress of your visa application and estimate how long you might have to wait for your visa number to become available.
  • Significance: Understanding the current and upcoming cut-off dates helps you plan your next steps and manage expectations regarding the timeline of your green card application.

Understanding the Risks if I-829 is Denied

• Potential Risks and Consequences if the I-829 Petition is Denied: The I-829 petition is the final step in the EB-5 process, allowing investors to remove the conditions on their green card and achieve permanent residency.
  • Denial Consequences: If the I-829 is denied, the investor and their family members (including the spouse) may lose their conditional permanent resident status and face potential deportation.
  • Common Reasons for Denial: Insufficient evidence of job creation, failure to sustain the investment, or incomplete documentation. An immigration attorney can help mitigate these risks by ensuring that all requirements are met and properly documented.
  • Appeal Process: If denied, there may be options to appeal the decision or reapply with additional evidence. Consulting an attorney can provide the best strategy for moving forward.

Securing a U.S. green card for the spouse of an EB-5 investor requires navigating a complex process with precision. From gathering necessary documentation to exploring alternative visa options and understanding potential risks, staying informed is key. Professional guidance from an immigration attorney can simplify this journey and enhance your chances of success.

For expert legal assistance, contact Sweta Khandelwal, a seasoned immigration attorney dedicated to helping families achieve their U.S. immigration dreams. Visit Sweta Khandelwal’s website to schedule a consultation.

Conclusion:

Navigating the EB-5 visa process and securing a green card for your spouse can be complex, but with the right guidance and preparation, it’s achievable. Understanding the key steps, documentation requirements, and potential risks is essential for a smooth transition to permanent residency in the U.S. If you have questions or need personalized assistance, consulting an experienced immigration attorney can make all the difference.

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Disclaimer:

Pricing information provided here is for reference only and may fluctuate. For the most accurate and current Government/USCIS fees, please refer to the relevant government websites or official resources. The attorney fees are indicative and will depend upon the facts and circumstances of the individual case. Fees and costs are subject to change and should not be considered as a definitive cost.