Divorce and Family Changes
During the EB-5
Immigration Process
Unexpected family events like divorce or the death of the investor (primary applicant) can complicate the EB-5 green card journey. Timing matters—whether these changes happen before or after key milestones (I-526E approval, issuance of conditional green cards, I-829 filing) determines what options remain for spouses and children.
Death of the Primary EB-5 Investor
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.
Before I-526E Approval
If the principal investor dies after filing Form I-526E but before USCIS approves it:
Dependents in the U.S.: These dependents can often continue via adjustment of status (I-485). Courts have allowed surviving family members to pursue conditional green cards, though USCIS may issue an RFE or NOID requiring legal arguments
Dependents outside the U.S.: The original petition typically cannot proceed. A surviving spouse must file a new I-526E using the same EB-5 investment (funds must remain at risk). Children under 21 may qualify for derivative visas under the new petition.
After I-526E Approval but Before Green Card Issuance
Approved petitions generally continue forward. Surviving spouse/children can pursue consular processing or adjustment of status.
After Conditional Green Cards Issuance
Dependents can file I-829 to remove conditions independently. The investment must still meet job creation/sustainment requirements.
Divorce or Separation
Before I-526E Approval
Investor’s Spouse: Loses eligibility on the original petition.
Childern (under 21): Continue as derivatives of the primary investor regardless of parents’ divorce.
After I-526E Approval but Before Green Card Issuance
Similar rules apply, but approved petitions give a stronger footing for children. Spouses lose derivative status when the divorce is finalized.
After Conditional Green Cards Issuance
Investor’s Spouse: Can file independent I-829 to remove conditions. Approval depends on proving that the original investment met the necessary EB-5 requirements (10 jobs created, funds sustained).
Childern: Unaffected— they file their own I-829s.
Investor: Must file I-829; spouse’s petition links back to it.
After I-829 Approval
At the permanent residence stage after I-829 approval, all family members hold individual green cards. Divorce has no immigration impact at this point.
Key EB-5 Timing Chart
| Stage | Spouse Impact | Child Impact |
|---|---|---|
| Pre I-526E Approval | Loses Eligibility | Continues |
| Post I-526E, Pre-Green Card | Loses Eligibility | Continues |
| Conditional Green Card | Independent I-829 | Independent I-829 |
| Post I-829 | No Impact | No Impact |
Additional Considerations (2026 Updates)
Grandfathering Protection: If an investor’s I-526E petition was filed before Sept 30, 2026, family members retain full program access even if the EB-5 program sunsets in 2027. Divorce timing does not affect this statutory protection.
Child Aging Out: Children turning 21 before I-526E approval lose eligibility to be a derivative to the initial investor. Divorce accelerates this risk for the investor’s spouse’s children. A child’s age is effectively “frozen” on the date the I-526E petition is filed, meaning USCIS generally uses that filing date – not the approval date – to determine whether the child is still under 21 at the time of adjudication.
Investment Protection: Divorce does not affect the EB-5 investment itself. Funds must remain committed through the I-829 stage regardless of marital status.
Concurrent Filing Strategy: Families facing divorce risks should consider concurrent I-526E/I-485 filing (if eligible) to lock in adjustment of status before separating.
Action Steps
Document everything—divorce decrees, custody agreements, financial separations.
File standalone petitions for at-risk family members when possible.
Consult immediately—EB-5 attorneys can file motions to amend, successor petitions, or humanitarian parole if needed.
Navigating EB‑5 while managing a divorce or the loss of a spouse is challenging. At Houston EB-5, we can connect individuals with experienced EB‑5 immigration attorneys who handle these specific situations — reaching out opens the door to discussing personal circumstances and getting pointed in the right direction.
Frequently Asked Questions
1) 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.
2) 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.
3) 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.
4) 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.
5) 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.
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