Including Family Members: How Spouses and Children Benefit from EB-5

The EB-5 Immigrant Investor Program offers a pathway to a U.S. Green Card not just for the primary investor, but also for their immediate family members. Understanding how spouses and children can be included in the petition is crucial for comprehensive immigration planning.

Eligibility for Derivative Beneficiaries

The EB-5 process allows for the inclusion of derivative beneficiaries, which significantly enhances the value proposition of the investment. These derivatives gain the same immigration benefits as the principal investor.

Who Qualifies as a Derivative?

The following individuals are generally eligible to be included in the I-526 petition:

• Spouse: The legally married spouse of the principal investor.
• Unmarried Children Under 21: Children who are unmarried and under the age of 21 at the time the I-526 petition is filed.

Understanding the "Child" Definition

U.S. Citizenship and Immigration Services (USCIS) adheres strictly to the definition of a "child" for immigration purposes. This definition is central to derivative eligibility.

A child is defined as an unmarried person under the age of 21 years at the time of filing the petition.

It is vital to note that once a child turns 21 before the petition is approved, they may "age out." However, the Child Status Protection Act (CSPA) may offer protection in certain circumstances.

The Benefits of Derivative Inclusion

Including spouses and children as derivatives provides several immediate and long-term advantages:

1. Concurrent Green Card Application: Derivatives can apply for permanent residency (through adjustment of status or consular processing) at the same time as the principal investor.
2. Freedom of Movement: Derivatives gain the right to live, work, and study anywhere in the United States without needing separate employment authorization documents (EADs) related to the EB-5 category.
3. Education Opportunities: Children can attend U.S. public schools and universities, often qualifying for in-state tuition rates available to permanent residents, bypassing the often higher costs associated with international student visas.
4. Stability: The entire family unit secures conditional permanent residence simultaneously, providing a stable foundation for relocation.

Documentation Requirements

To successfully include family members, the investor must provide robust documentation proving the relationship:

• Marriage certificate for the spouse.
• Birth certificates for all children.
• Evidence that the children remain unmarried (e.g., an affidavit).

Failure to provide proper documentation can lead to Requests for Evidence (RFEs) or denials for the derivative applicants.

Navigating Complexities: Aging Out and CSPA

The risk of a child aging out—turning 21 before their priority date is current—is a significant concern for many families.

The CSPA formula attempts to freeze the child's age based on the time the I-526 petition was pending. The calculation is complex:

Age for CSPA = Actual Age - (Time I-526 was Pending)

Consulting an experienced immigration attorney is essential to correctly apply the CSPA formula and ensure the child's eligibility is preserved.

Conclusion

The EB-5 program offers a powerful avenue for family unity through derivative inclusion for spouses and unmarried children under 21. Proper preparation of documentation and awareness of age-out protections are key steps to securing permanent residence for the entire family unit through this investment pathway.