What if my EB-5 investment fails after two years?

If your investment fails, then the condition on your green card will not be removed; therefore, a permanent green card cannot be issued.

If your investment fails (you do not sustain your investment for the entire conditional period and/or the required number of jobs are not created within two years or within a reasonable period of time), then you will not be able to remove the condition and receive your permanent green card. Such failure, absent fraud, would not make you ineligible to receive a different type of visa (nonimmigrant or immigrant) in the future. You should consult with an experienced immigration attorney, such as myself, since your case involves complex issues. For example, there is a statutory restriction on conditional lawful permanent residents adjusting status in the United States, but there may be some options for you to avoid this restriction.

Control of timing is very important in your case. If you do not plan to add your husband as a derivative applicant at the I-485 stage, you can just apply for a green card for yourself only. The problem is that once you obtain your green card and want to apply for a green card for your husband at a later time, he may need to wait for a long period of time, due to the visa backlog for family-based applications. If your husband is qualified for EB-1A, I will suggest he submit application right away, even he is still a student. EB-1A does not need an employer''s sponsorship. If you have further questions, please feel free to contact our firm.

Lots of parts to your question, which would really need a full consultation to go through, but we can provide some brief answers here. First, you can go through the EB-5 process completely separately from your husband. You can name him as a dependent, but he does not have to obtain his green card at the same time as you. If your investment fails and the jobs are not created, you will not be able to remove the conditions on the green card. You would have to consider the timelines of both you and your husband to arrange the EB-1, H-1B and H-4, which we could assist you with.

It is good to have back up plans, but I would suggest you carefully consider the EB-5 route and have an expert help you, rather than doing it yourself. The EB-5 route, because of the amount of money in investment at stake, should not be undertaken lightly. If you think it may fail after two years, you should not do it. There are several good regional centers with good track records for I-829 removal of condition that you could use and get back your money in six years, so you don''t have to take unnecessary chances.

If your husband qualifies for EB-1, it does not make sense to tie up so much money doing an EB-5. Especially given the fact that you question the strength of the enterprise. I will be happy to consult further.

The short answer is that you are permitted to follow several paths at the same time, involving you and/or your husband. Which is "better" would require a more extensive analysis.

If it fails, you will not be able to remove the condition from your resident status. This need not preclude you from getting a green card based on your marriage.

It would be less expensive to pursue the EB-1 process compared to the EB-5 process. Please remember the EB-5 personal investment has to be at risk; therefore, if the business fails, you may loose the personal investment. There is also the risk that the EB-1 may not be approved; therefore, the hiring of an experienced EB-1 attorney is essential.