Navigating the EB-5 investor visa program can become complicated when unexpected life events occur. Understanding how divorce, family separation, or the death of the primary investor affects your immigration case is crucial for protecting your family’s green card application.
Death of the EB-5 Primary Investor: What Happens to Family Members?
When an EB-5 investor passes away during the immigration process, the impact on dependent family members depends on the timing and their current location.
If Death Occurs Before I-526E Approval
If the primary petitioner dies after filing the I-526E petition but before approval, the situation differs based on where the dependents are located:
Dependents in the United States: If family members are in the U.S. on valid non-immigrant visa status, legal arguments can be made to continue the immigration process. The dependents may be able to adjust status and obtain their conditional green cards.
Dependents Outside the United States: Unfortunately, if dependents are abroad when the petitioner passes away before I-526E approval, they typically cannot continue with the original petition. The surviving spouse may need to file a new I-526E petition based on the existing EB-5 investment.
If Death Occurs After Conditional Green Card Issuance
When the primary investor dies after receiving conditional green card status, the outlook is much more favorable. Dependent family members can typically continue the process, file the I-829 petition to remove conditions, and complete their EB-5 immigration journey.
Divorce or Separation During the EB-5 Process
Family separation during EB-5 processing affects different family members in different ways. The timing of the separation is critical to understanding your options.
Before I-526E Approval or Green Card Issuance
If divorce or separation occurs before the I-526E petition is approved and before conditional green cards are issued:
- Spouse (Non-Petitioner): The spouse who is not the primary petitioner cannot continue with the EB-5 immigration process
- Children of the Petitioner: All children of the primary petitioner can continue their immigration process regardless of the parents’ separation
After Conditional Green Card Issuance
If the family separation happens after conditional green cards have been issued but before filing the I-829 petition:
- Spouse (Non-Petitioner): The non-petitioner spouse can continue with their own separate I-829 process
- Important Note: The spouse’s I-829 petition approval depends on the primary petitioner’s I-829 approval, but they can file independently with USCIS
Protecting Your EB-5 Investment and Immigration Status
Life events like divorce, separation, or death can significantly impact your EB-5 case. The specific timing of these events in relation to your petition status determines what options are available to family members.
If you’re facing family changes during your EB-5 process, consulting with an experienced EB-5 immigration attorney is essential to understand your specific situation and protect your investment and immigration status.
Need help with your EB-5 case? Contact HoustonEB5.com to speak with experienced EB-5 immigration attorneys who can guide you through complex family situations during the investor visa process.
FREQUENTLY ASKED QUESTIONS
If the EB-5 investor dies before I-526E approval, can the family still get green cards?
It depends on where the dependents are living at the time of death and how far the case has progressed. If qualifying family members are inside the U.S. in valid non-immigrant status, counsel can often pursue a path to continue the case and seek adjustment of status based on the original EB-5 investment record. If dependents are outside the U.S. when the investor passes before I-526E approval, they generally can’t continue on that petition and the surviving spouse would typically need to file a new I-526E tied to the same qualifying investment. Either way, timing and residence matter, so getting a lawyer to assess the exact posture (filing receipts, project status, visa availability) is critical.
What happens if the investor dies after conditional green cards are issued?
Once the principal has been granted conditional permanent residence, the EB-5 family group is in a stronger position. Dependents usually may proceed to I-829 to remove conditions, provided the project still meets job-creation and “at risk” requirements and the filing is made on time with complete evidence. In practical terms, that means preserving the project documentation (I-956F materials, economic reports, funds flow, and job-creation proof) and tracking the calendar so the family does not miss the I-829 window. Most of the work becomes evidentiary: show the investment complied with EB-5 rules and created the required jobs, even though the principal has passed.
If a couple divorces before I-526E approval or before green cards are issued, can the non-investor spouse continue?
Generally no—if the divorce happens before I-526E approval (and before any conditional green cards are issued), the non-petitioning spouse usually cannot continue as a derivative. By contrast, the children of the EB-5 petitioner remain eligible to continue, assuming they still qualify as derivatives (age and marital status requirements apply). This is why attorneys push for precise sequencing: where possible, couples try to avoid making status-changing family decisions just before major EB-5 milestones unless they’ve modeled the immigration consequences. If separation is unavoidable, counsel can map options for preserving the children’s eligibility.
We separated or divorced after receiving conditional green cards—do we each file I-829 on our own?
Yes. After conditional residence is granted, the non-petitioning spouse can file an I-829 independently, using the same project evidence and timelines, while acknowledging that ultimate approval still hinges on the principal investment satisfying EB-5 criteria. In practice, attorneys often coordinate parallel filings or a single, well-organized packet with clear cross-references, so USCIS can see the job-creation proof and funds trail once rather than re-learning the project twice. Keep copies of everything (receipts, job reports, NCE/JCE updates) and calendar the I-829 deadline to avoid a lapse tied to administrative timing rather than substance.
What should a family do—right now—if divorce, separation, or death occurs mid-process?
First, freeze the facts on paper: gather receipts (I-526E, I-485, I-829), passports, status documents, and project evidence; note everyone’s physical location and status. Second, notify counsel promptly so they can determine whether continuation is possible on the existing filing or whether a new I-526E is required (common for surviving spouses abroad prior to approval). Third, don’t let timelines slip: maintain status in the U.S., track visa-bulletin movement, and preserve project records that prove capital at risk and job creation. The rules are timing-sensitive, but with clean documentation and quick legal triage, many families can protect their EB-5 trajectory despite a major life event.