Should I Marry Before or After I Apply for My EB-5 Visa?

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    The EB-5 immigrant investor visa program allows foreign nationals to obtain a conditional green card by investing at least $900,000 (or $1,800,000 if the investment is made in a Targeted Employment Area) in a new commercial enterprise that will create or preserve at least 10 full-time jobs for U.S. workers.

    For many, the EB-5 program represents an attractive path to lawful permanent residence and a new life in the United States. However, the process comes with some complicated logistical and legal considerations, especially if marriage is also part of your plans.

    In this post, we’ll explore the pros and cons of getting married before or after applying for an EB-5 visa. I’ll provide an overview of the EB-5 process, explain how marriage could impact your eligibility and application, and offer advice on choosing the optimal timing based on your individual circumstances.

    Let’s dive in!

    The Basics of the EB-5 Visa Process

    To understand how marriage fits into the EB-5 timeline, it helps to have a basic understanding of the typical EB-5 visa process:

    1. Investment in a new commercial enterprise. First, you’ll need to invest the required amount (currently $900,000 or $1,800,000) into a new U.S. business that has been approved by USCIS as part of a regional center project.

    2. I-526 petition approval. Once the business is set up and your funds are at risk, you file Form I-526 immigrant petition to classify the investment and obtain pre-approval of your visa eligibility. This petition process takes 6-18 months on average.

    3. Conditional green card receipt. If the I-526 is approved, you’ll receive a conditional green card valid for 2 years. This allows you to live and work permanently in the U.S.

    4. Investment maintenance and job creation requirement. During the 2-year conditional period, you must prove that the required jobs were created and that your investment capital remained at risk.

    5. I-829 petition approval. Within 90 days of the second anniversary of receiving the conditional green card, you file Form I-829 petition to have the conditions removed. Approval results in a 10-year permanent green card.

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    6. Optional naturalization process. After 5 years on the permanent green card, you can apply for U.S. citizenship if you meet certain additional requirements.

    So in summary – it’s a 3-5 year process involving investment, petitions, green cards, and job/investment maintenance requirements. With that background, let’s talk timing of marriage.

    Marrying Before Applying for EB-5 Status

    One option is to get married before initiating the EB-5 process. Here are some things to consider if going this route:

    Your Spouse Can Be Included

    The good news is that if you are married when your I-526 petition is filed, your spouse can obtain derivative EB-5 status. This allows them to live and work in the U.S. with you through the conditional green card period.

    Derivating status through a spouse’s petition is much simpler than going through the EB-5 process alone or later trying to get a family-based green card separately. It’s one less thing to worry about down the road.

    Finances Must Stay Separate

    However, it’s crucial that any funds you use for the EB-5 investment remain solely from your own pre-marriage assets and income. Commingling assets post-marriage could jeopardize your EB-5 capital “at risk” requirement if your spouse’s money from a joint account was used.

    You’ll need to provide documentation showing the investment capital came from separate pre-marriage property. Keep careful records and consult an attorney on the best ways to track separate finances.

    Interview May Involve Spouse

    USCIS interviews as part of the I-526 and I-829 processes sometimes include questions about the petitioner’s marital status and finances. You and your spouse should be prepared to jointly explain the history and separation of assets. Practice consistent answers together in advance.

    Divorce Complicates Process

    A divorce in the middle of the EB-5 process could freeze or invalidate your application. You’d need to prove the capital was legitimately obtained prior to marriage and that any divorce decree doesn’t negatively impact the EB-5 investment. Overall, marriage adds complexity to an already lengthy process.

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    In summary, marrying before EB-5 initiation can work if separate finances are strictly maintained and properly documented throughout. You’ll have a smoother path with derivative status for your spouse included. But divorce risks derailing your petition path to a green card.

    Marrying After EB-5 Green Card Approval

    The other option is to wait until after receiving your EB-5 visa to get married. Here are factors involved with this timing choice:

    Simpler Investment Requirements

    Getting married after the key EB-5 processes makes meeting EB-5 investment requirements a bit more straightforward. There’s no risk of asset commingling questions or needing to prove separation of finances throughout the petition periods.

    No Reliance on Derivative Status

    You won’t need to include a spouse in your initial EB-5 petition or rely on them obtaining derivative status. This allows you to fully focus on your individual petition requirements without coordinating with a spouse.

    Marry a U.S. Citizen for Fast Green Card

    If you marry a U.S. citizen after receiving the permanent EB-5 green card, you can immediately file Form I-130 petition for them. Approval of this petition usually results in a fast permanent residency through the family-based process within about 6-8 months.

    More Stable Relationship Timing

    Waiting for permanent residency provides more stability for establishing a solid marital relationship without the added pressure of the conditional EB-5 process looming over you. You can fully settle in to your new life in the U.S. before taking on a marriage legally in the immigration system.

    The downside is your spouse wouldn’t be included initially in the EB-5 process and there’d potentially be a delay getting them lawful status until later. And if there were intent to solely get married just to file Form I-130, USCIS may more closely scrutinize the bona fides of the relationship during the petition approval process.

    In conclusion, marrying after securing the EB-5 conditional and permanent green cards streamlines the investment requirements and provides a stable foundation for the marriage. But it means your spouse won’t have derivative status until the I-130 petition process is complete after you receive your permanent residency.

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    Wrapping Up

    As with many aspects of the immigration process, there’s no single “right” answer on the timing of marriage that fits every EB-5 visa seeker. You’ll need to weigh the pros and cons based on your unique circumstances. Here are a few additional considerations:

    Length of relationship. If you’ve been in a long-term relationship, marrying before the EB-5 process provides stability and allows including your spouse. A new relationship may be better timed after permanent residency is secure.

    Spouse’s citizenship or status. If your partner is a U.S. citizen, marrying after the EB-5 green card is optimal for their fast family petition. But dual intent fiancĂ© visas are also an option for a foreign national spouse while going through EB-5 concurrently.

    Potential job changes and moves. Marrying later avoids issues if careers require relocating during the 2 years of an active I-829 petition when residency changes disrupt monitoring. But employment letters showing sufficient income for both parties can mitigate concerns over mid-process location shifts for pre-existing marriages.

    Family planning timelines. If starting a family quickly is a priority, getting married before the EB-5 allows including children conceived during conditional residency. Later marriages mean potentially going through separate immigration steps for any children conceived overseas.

    Use of a lawyer. Consulting an experienced EB-5 and family immigration attorney can help analyze your timeline options, prepare documentation properly, and represent you effectively in any agency interviews that may come up during the process. This advice is crucial for complicated situations involving marriage.

    In the end, take time to fully understand the intricacies of both options, consult professional guidance tailored to your narrative, and choose the path that gives you the least legal risk and maximum support through such a substantial life transition. Focus on setting yourself up for the long-term permanence that EB-5 aims to provide, and the best route for your new family.

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