Who Are EB-5 Derivative Beneficiaries?

Many foreign nationals plan on becoming lawful permanent residents in the U.S. with the hope that their spouse and children can benefit from a high quality of life, education, and increased career opportunities.

However, it can sometimes seem like a daunting—if not impossible—task when you review the numerous forms and timelines you must follow to find the best option for you and your family. Complex legal terms certainly don’t help, either.

What exactly does it mean to be a derivative beneficiary? Who qualifies as a derivative beneficiary of your EB-5 visa? Does a derivative beneficiary need to fill out the same forms as a principal applicant, at the same time? In this article, we’ll walk you through these questions and help you better understand how to succeed in securing Green Cards for your family.

What’s the Difference Between a Principal and a Derivative Beneficiary?

For EB-5 visa purposes, there are two main categories of beneficiaries: principal and derivative. The principal or primary beneficiary is the individual applying for the investment visa and making the required investment. They’re also known as the main or primary applicant.

In other words, the principal beneficiary is the person who applies for the EB-5 visa in the United States.

A derivative beneficiary is an individual who stands to benefit from the main applicant’s visa but who is not the one applying for an EB-5 visa. These beneficiaries usually include close family members, such as the spouse and children.

On a basic level, the main difference between the primary or principal beneficiary and the derivative beneficiary is their status. The principal beneficiary is also the main visa applicant, while the derivative beneficiary, as the name suggests, is someone who derives certain benefits as a result of the primary visa applicant.

Who Can Qualify as a Derivative Beneficiary for an EB-5 Visa?

As a general rule, the immediate relatives and dependents of the principal beneficiary are eligible to qualify as derivative beneficiaries. This includes the principal beneficiary’s spouse and any dependent, unmarried children under the age of 21.

Adopted children also qualify as long as they are under 21 and unmarried. However, relatives like the applicant’s siblings, aunts, uncles, parents, or grandparents are excluded.

Derivative beneficiaries only become eligible for the visa benefits after the principal beneficiary’s application is approved. Usually, if the principal beneficiary (the main applicant) qualifies for the program and is issued their EB-5 visa, all derivative beneficiaries should also be eligible.

It’s important to note—since this isn’t universal for investment visas—that applicants with same-sex legal partners or spouses are eligible to qualify as derivative beneficiaries. As long as the couple was married in a jurisdiction where same-sex marriage is legal, the primary applicant’s partner may qualify for these benefits. Also, any children legally under the care of a couple, whether biological or not, may qualify as derivative beneficiaries.

Who Does Not Qualify as a Derivative Beneficiary?

It’s much easier to summarize the limited categories of individuals who qualify as derivative beneficiaries than to give an extensive list of those who do not. As a general rule, EB-5 visa beneficiaries can only include immediate family. The issue with this terminology is in the details.

As mentioned above, “immediate family” does not include grandparents, parents, siblings, cousins, nieces, nephews, aunts, or uncles. However, there are some additional categories that may be less obvious.

For example, what constitutes a spouse? You may believe your common-law partner would qualify as a derivative beneficiary because you’ve been together for 12 years and have two kids, but the immigration authorities may not see it that way.

You must be legally married to your spouse in your home country for your partner to qualify as an EB-5 beneficiary. United States Citizenship and Immigration Services (USCIS) only recognizes legally married spouses.

However, if your home country does not recognize your union as a legally binding marriage, the U.S. government will not consider your partnership lawfully binding. Therefore, your spouse won’t qualify as a derivative beneficiary.

As for children, there are also special rules that apply.

As mentioned above, unmarried children under 21 can qualify as an EB-5 dependent. But what if you were unmarried when your parent applied for an EB-5 visa, but got married before the application was complete? Unfortunately, you would not qualify.

On the other hand, before the enactment of the Child Status Protection Act (CSPA), a big worry for EB-5 investors with children was that their kids would turn 21 and “age out” before their visa applications would be approved. Many children were aging out because of long processing delays, especially from backlogged countries. The act was passed to “freeze” a child’s age at the time their visa application is submitted, rather than when it’s adjudicated, to address this issue.

Due to intricacies like these concerning the eligibility of EB-5 derivate beneficiaries, it is highly recommended that foreign investors work with an experienced immigration attorney throughout the application process.

How to Apply for Derivative Status?

The very first step to acquiring a derivative visa is for the principal beneficiary to qualify for the EB-5 investor visa. Essentially, the derivative beneficiary or beneficiaries can’t begin claiming benefits or applying for permanent residency in the U.S. until after the main application and investment are made and approved.

The process is relatively similar for both the principal and derivative beneficiaries after making the initial investment and submitting the application.

The principal beneficiary must first apply for conditional permanent residency in the United States by completing and submitting Form I-526E, then Form I-485 to adjust status. Under the EB-5 Reform and Integrity Act of 2022 (RIA), eligible applicants who live in the U.S. can file these two forms concurrently.

Upon approval, the applicant obtains conditional permanent residency status in the U.S. that is valid for two years. As long as the conditions are met for the EB-5 visa, after two years, you can apply for permanent residency and have the conditions removed.

Then, if you desire, you can apply for citizenship after five years.

Derivative beneficiaries must also submit their own Form I-485 if they wish to pursue permanent residency. However, they have a few options regarding the timeframe in which they choose to submit the form.

Most commonly, EB-5 derivative beneficiaries file their Form I-485s at the same time as the principal applicant. This is usually the recommended method for a faster and smoother process.

However, derivatives can also file I-485 within six months after the principal applicant obtains permanent resident status. If they choose to file later than this, they must use the follow-to-join route. This principle applies to cases where a Green Card holder petitions to reunite with their dependent family members. An eligible family member may follow to join during the principal applicant’s two-year conditional residency period.

EB-5 Derivative Beneficiaries: FAQs

Can Divorced Couples Qualify as Derivative Beneficiaries?

If divorced before applying for conditional permanent residence, a principal beneficiary’s spouse will not be eligible to qualify as a derivative beneficiary. However, if the divorce occurs after acquiring conditional permanent residence status, it should not impact the spouse’s ability to proceed with the immigration process.

Can a Child Who’s Turning 21 Qualify as a Derivative Beneficiary?

Yes, but only if they follow a specified timeline. A child who turns 21 before filing Form I-526E is not eligible for an EB-5 visa as a derivative beneficiary. However, if they turn 21 after filing this form but before it is approved, they can still complete the process of becoming a derivative beneficiary. To do this, the child needs to start their adjustment of status (or consular processing) within a year after the I-526E is approved, so their age can remain “frozen” at the age when the form was initially filed.

What if I Need to Apply From Outside the United States?

The derivative beneficiary can apply for lawful permanent resident status outside the United States through consular processing. This entails applying through the local United States consulate in the country where you live. In special cases, dependents can also pursue follow-to-join, as explained above.

Dependents that are already in the U.S. in lawful status can adjust status from inside the country.

What Happens to Derivative Beneficiaries if the Principal Applicant Passes Away?

If the principal EB-5 applicant passes away during the two-year conditional permanent residency, their derivative beneficiaries can still remove conditions to become permanent residents (and eventually apply for U.S. citizenship.)

However, if the principal applicant dies before I-526E approval, their family members may need to withdraw their EB-5 application and re-file. There may be other options to pursue if the family members already reside in the U.S., so it’s best to consult an immigration attorney in these cases.

EB5AN Can Help Your Family Get Green Cards

Obtaining lawful permanent residence in the United States can be a complex process, where simple errors can impact your eligibility as a derivate beneficiary, delay your status, or affect your ability to remain in the U.S.

The good news is that you don’t have to do it all by yourself. EB5AN has helped over 2,300 families become lawful permanent residents in the United States through the EB-5 visa program, and we can do the same for you. Book a free call with our team today to start your family’s journey toward becoming U.S. Green Card holders.