Can I Divorce and Qualify for the EB-5 Investor Program Instead of a Marriage Green Card?
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Reviewed & verified by A. Jason Velez, Esq.*
Managing Attorney, 1LAW · Last reviewed January 1, 2026
Legal Inquiry
Consumer Legal Issue
I have TPS, and I got married to get my green card, but the application hasn't been approved yet. I would like to know if I can divorce and apply for the EB-5 investment program. Do I qualify for it?
It’s still pending.
Attorney Answer
Ending your marriage now would very likely end your current green card case, and switching to EB-5 is a completely separate, capital-intensive path that does not depend on your marital status.
A marriage-based green card generally requires the qualifying marriage to remain valid while U.S. Citizenship and Immigration Services (USCIS) reviews the case. Since your petition and any related adjustment application are still pending, divorcing before approval would generally eliminate the qualifying relationship, and USCIS would typically deny or terminate the case. There are narrow exceptions in situations involving abuse or the death of a petitioning spouse, but a voluntary divorce during the pending stage is not one of them.
The EB-5 Immigrant Investor Program is a completely different, employment-based path that does not depend on marriage at all. Under the EB-5 Reform and Integrity Act of 2022, you generally need to invest at least $800,000 in a new commercial enterprise located in a targeted employment area (a rural area or one with high unemployment), or at least $1,050,000 if the investment is outside a targeted area. The investment must create at least 10 full-time jobs for qualifying U.S. workers, and you must show the invested funds came from a lawful source, which USCIS reviews closely.
Your TPS (Temporary Protected Status) is its own separate status and does not disappear because a marriage-based case ends. TPS lets you remain and work in the U.S. while it stays in effect, but it does not by itself lead to permanent residency.
A few things worth thinking through: - Whether you have, or could realistically raise, the required EB-5 investment amount and document its lawful source. - Whether staying married and letting the current case proceed might reach approval faster than starting a brand-new EB-5 filing, which currently has a substantial backlog for some countries. - Whether any USCIS interview or request for evidence is already scheduled, since that can affect timing.
Because both paths involve strict federal requirements, and a mistake in timing can affect your ability to stay in the U.S. lawfully, this is a case where you should talk to a licensed immigration attorney before making any decisions about divorce or filing a new petition. This is general legal information, not legal advice, and a local immigration lawyer can advise on your specific situation.
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Federal Immigration Resources
- Visit U.S. Citizenship and Immigration Services (USCIS) to check case status, forms, and official immigration guidance.
- Visit Executive Office for Immigration Review (EOIR) to find immigration court information and hearing details.
- Visit ImmigrationLawHelp.org to find nonprofit immigration legal-service providers near you.
- Use the LSC — Find Legal Aid to find a local legal-aid office by ZIP code.
- Use the ABA Lawyer Referral Directory to get matched with a local attorney through your state bar.
Frequently Asked Questions
Will my TPS status be affected if my marriage-based green card case is denied?
Not directly. TPS is a separate status you maintain by meeting its own requirements, such as re-registering during designated periods. Losing a marriage-based case does not automatically end TPS, but it is worth confirming your TPS re-registration is current.
How long does the EB-5 process typically take?
Timelines vary widely depending on your country of birth and whether you use a regional center, but it often takes several years from investment to a decision, sometimes longer for backlogged countries. An immigration attorney can give you an estimate based on current processing times.
Can I withdraw my marriage-based petition instead of divorcing right away?
Not on your own. Under 8 C.F.R. § 103.2(b)(6), only the applicant or petitioner can withdraw a benefit request. On a Form I-130 the petitioner is your spouse, so withdrawing that petition is your spouse's decision, not yours. You are the applicant on your own Form I-485 adjustment application, so that one you could withdraw — but doing so does not change the underlying facts of your marriage and would leave you without a pending adjustment case, so talk with an attorney about the pros and cons first. In many cases, letting a strong, pending case run its course is simpler than starting over with EB-5.
