New EB-5 Rule: Spouses and Children Can File the I-829 on Their Own

The last step of the EB-5 process is filing Form I-829 during the 90 days before the conditional green card expires, to remove the conditions and obtain permanent residence. On October 23, 2025, the Department of Homeland Security (DHS) first proposed amending 8 CFR § 216.6(a)(1)(ii) in its proposed EB-5 fee rule (NPRM, 90 FR 48516). After public comment, DHS published the final rule on September 30, 2026 (91 FR 61940). It takes effect on November 30, 2026.

The amendment writes the full set of rules on who may file an I-829 separately into the text of the regulation. Most importantly, it adds a new provision: when the principal investor does not file an I-829, a derivative family member can file on their own.

I. What the rule says

As amended, 8 CFR § 216.6(a)(1)(ii) provides that the principal investor may include a spouse and children in the principal's own I-829. A spouse or child who is not included must file a separate I-829, within the same window as the principal: the 90 days before the conditional green card expires.

Paragraph (D) is the genuinely new content. If the principal does not file an I-829, any spouse, former spouse, or child who obtained conditional residence through their relationship to the principal may file a separate I-829, so long as they can independently show the requirements for removing conditions are met (the investment was sustained and the jobs were created). The filing deadline is the same as the one that applied to the principal.

II. Why the rule changed

1. The regulation and actual policy had long been at odds

The old text of 216.6(a)(1)(ii) expressly provided only one situation in which a derivative could file separately: the death of the principal. In responding to public comments, the 2019 EB-5 Modernization rule (84 FR 35750) said derivatives would file separately "generally because the principal failed or refused to file an I-829" (84 FR 35782), and practitioners read that to mean derivatives could file when the principal did not.

But when USCIS revised the I-829 instructions in May 2021 (86 FR 26230), it specifically clarified that the 2019 statement referred to a principal who failed or refused to file on the derivative's behalf, not a principal who did not file at all. USCIS's position then was that if the principal did not remove conditions, the derivatives generally could not either, with the single exception of the principal's death.

In other words, until this new rule, USCIS's official position was exactly the opposite. In practice, families in which the principal abandoned the green card and never filed an I-829 were left in a very weak position, and derivatives often watched their own status lapse along with the principal's. New paragraph (D) reverses the 2021 position directly, and all four situations, (A) through (D), are now written into the regulation.

2. A derivative's green card is their own status

A derivative holds conditional residence in their own name. The substantive requirements for removing conditions are objective facts, whether the investment was sustained and whether the jobs were created, and do not depend on whether the principal is willing to file. If a principal's death, a divorce, and a child's aging out are all recognized as not affecting derivatives, there is no logical reason to treat a principal's decision not to file differently.

That decision is one of the most common situations in practice. Examples include couples who are separated but not divorced, principals who have moved back home and do not want to keep U.S. status, and principals who do not want a green card for tax or other reasons while their spouse and children want to stay in the U.S. to study and live.

3. Consistency with the purpose of INA § 216A

The two-year conditional period exists to verify that the investment and job creation actually happened, not to penalize the investor's family. As long as derivatives can prove the requirements on their own, denying their I-829s serves no enforcement purpose.

III. Benefits for families who will file I-829s

1. The principal no longer holds a veto over derivatives' status

In the past, derivatives' permanent residence depended entirely on the principal. If the principal did not file, the whole family's status lapsed. Under the new rule, spouses and children have their own path. For families where the principal has returned home, given up the green card, or is in a strained marriage that has not ended in divorce, the spouse and children finally have legal protection for their U.S. status.

2. Family conflict and divorce no longer hold children back

The rule allows a former spouse and children to file together on one I-829. A former spouse raising minor children after a divorce can apply with the children directly, without going through or contacting the principal, and the children and their guardian can complete biometrics at the same appointment.

3. A clear regulatory basis for children who age out

A child who turns 21 or marries during conditional residence can still be included in the principal's I-829, and can file separately if not included. This used to appear only in the form instructions. Now that it is in the regulation, an officer cannot refuse the filing on the ground that the child no longer meets the definition of a child.

4. More flexibility after a principal's death

After the principal dies, the spouse and children can file separately or together on one application, choosing whatever fits the family, without worrying about procedural defects.

5. Much greater certainty now that the rules are in the regulation

Before, attorneys could only cite the preamble to the 2019 rule and the form instructions when advocating for derivatives, and outcomes were uncertain. Now all four situations are in the text of 8 CFR § 216.6, so derivatives filing an I-829 have a clear, citable legal basis, and the risk of an RFE or denial is correspondingly lower.

6. More planning room for principals

Some investors never intended to live in the U.S. long term and pursued EB-5 mainly for their spouse and children. Under the new rule, a principal can plan their own residence and taxes more freely, without having to keep a U.S. green card solely to protect the family's status.

IV. Practical reminders

• A derivative filing a separate I-829 must still prove, on their own, that the investment was sustained and the jobs were created.
• The filing window is the deadline that applied to the principal. It is not extended because the principal does not file.
• If the principal intends to give up the green card, talk with counsel early about timing, so that the date the principal abandons status does not conflict with the derivatives' I-829 filing window.

EB-5 is a family-based program in practice, yet the old regulation tied family members' status entirely to the principal's decisions. Though brief, this amendment closes a gap that existed for years.

If your family is in the conditional residence period or about to file an I-829, please contact the Sophie Team. We will design the safest filing strategy for your family's circumstances.

This article is for general legal information only and is not legal advice for any individual case. Please consult an attorney about your specific case and follow the official requirements in effect at the time of filing.