EB-5 Principal Applicants and Derivative Beneficiaries Explained

Most foreign nationals looking to become U.S. permanent residents do so not just for themselves but also for their families. They want their spouse and children to enjoy a better quality of life, access to world-class education, and increased career opportunities.

Employment-based visas allow foreign nationals to bring their dependents to the United States under certain conditions. However, most of these visas require employer sponsorship, and those that don’t often have strict requirements.

The EB-5 visa is unique because it is open to all nationalities and does not require sponsorship or specific educational or career backgrounds. EB-5 investors and their dependents can receive Green Cards upon approval of their relevant petitions.

However, before applying for a Green Card through the EB-5 Immigrant Investor Program, it’s important to understand key concepts and rules. This article explains what a principal applicant and a derivative beneficiary are, and who qualifies for each.

What Is a Principal Applicant and Derivative Beneficiary?

A principal applicant is the person who benefits directly from an EB-5 visa. It is the foreign national petitioning for an EB-5 visa and making the required investment. Simply put, the principal applicant is the EB-5 immigrant investor. A principal applicant is also called a primary applicant.

A derivative beneficiary is a family member who benefits from the principal applicant’s petition. For EB-5 purposes, a derivative beneficiary is usually the spouse and unmarried children under 21 of the EB-5 visa applicant. We will explore the details of eligibility below.

What Is the Difference Between a Principal Applicant and a Derivative Beneficiary?

The principal applicant is the one who invests in an EB-5 project and files an I-526E petition. Their immigration status depends on the success of their petition and is not affected by the status of their derivative beneficiaries.

EB-5 derivative beneficiaries, however, get their immigration status through the principal applicant. Their status depends on the EB-5 investor, and any changes to the EB-5 investor’s status will impact them.

Who Qualifies as a Derivative Beneficiary Under the EB-5 Program?

Only legal spouses and unmarried children under 21 of EB-5 investors qualify as derivative beneficiaries. Adopted children also qualify if they are under 21 and legally adopted by the EB-5 investor.

EB-5 applicants cannot include their parents, siblings, or married children. The marriage of the spouse must be legally recognized in their home country.

The United States Citizenship and Immigration Services (USCIS) does not recognize common law and civil partners, no matter how long the partnership has lasted. This means a civil or common-law partner does not qualify as a spouse derivative for an EB-5 visa application.

If an EB-5 applicant gets divorced during the process, their ex-spouse won’t qualify as a derivative unless they have already received conditional permanent residence. If the ex-spouse received conditional residence before the divorce, they might still be able to get their Green Card.

How to Apply as a Derivative Beneficiary

You can only apply as a derivative beneficiary after the principal applicant’s I-526E petition has been approved by USCIS. First, the investor must make the required investment and file the I-526E petition.

Once the I-526E is approved, derivative beneficiaries can file their adjustment of status, employment authorization, and travel authorization petitions.

If the investor is applying from outside the U.S. through consular processing, their derivative beneficiaries must each complete a Form DS-260 and attend the consular interview with the principal applicant at the U.S. embassy or consulate in their home country.

It’s best to apply for your Green Card along with the principal applicant. If you do not file an I-485 petition within six months of the principal applicant’s I-485 approval, you may still apply as a derivative, but you’ll need to go through the follow-to-join process.

EB-5 Derivative FAQs

What Happens if the Principal Applicant Passes Away?

If a principal applicant dies before completing the EB-5 process, the status of their derivative beneficiaries will depend on what stage of the process they’re in. If the derivative beneficiaries received conditional Green Cards before the death, they can still file an I-829 petition to remove conditions.

If the principal applicant dies before their I-526E petition is approved, the derivatives may need to withdraw and refile the EB-5 application. In some cases, they may still receive I-485 approval. It’s best to consult an immigration attorney in this situation.

Can Derivative Beneficiaries Abroad Join a Principal Applicant Filing for Adjustment of Status in the U.S.?

If an EB-5 investor gets conditional permanent residence through adjustment of status in the U.S. and their derivatives are abroad, they can join them in the U.S. by filing Form I-824, Application for Action on an Approved Application or Petition.

What Happens if a Derivative Child Turns 21 During the EB-5 Process?

If a derivative child turns 21 before the I-526E petition is approved, their status may remain valid under the Child Status Protection Act (CSPA). The CSPA allows the child’s age to be “frozen” at the date the I-526E petition is filed if it was filed before the child’s 21st birthday. However, to benefit from this protection, the child must meet the “sought to acquire” requirement, which means filing for adjustment of status or submitting DS-260 within one year of a visa becoming available.

While USCIS has updated its aging-out policies, the Department of State (DOS) has not updated its policies for consular processing. This means children applying for immigrant visas abroad might face different criteria, which could affect their ability to meet the “sought to acquire” requirement.

Can a Beneficiary Already in the U.S. on a Non-Immigrant Visa Adjust Status if the Primary Applicant Is Applying Through Consular Processing?

A derivative beneficiary already in the U.S. under a nonimmigrant status cannot file for adjustment of status if the principal applicant is going through consular processing. The derivative beneficiary must leave the U.S. and go through consular processing with the EB-5 principal applicant.

If the Principal Applicant Abandons Their Green Card, Does It Affect Derivative Beneficiaries?

A derivative beneficiary’s status depends on the principal applicant. If the principal applicant abandons their conditional Green Card before Form I-829 approval, the derivatives will lose their status. However, once they become lawful permanent residents, their status is independent of the principal applicant.

If the principal applicant abandons their Green Card after Form I-829 approval, their derivative beneficiaries will retain their lawful permanent resident status.

EB5AN Can Help Your Family Become U.S. Permanent Residents

The EB-5 visa is a great option for foreign nationals seeking Green Cards for their family. With a minimum investment of $800,000 in a targeted employment area project, foreign investors can get permanent resident status for themselves and their dependents. However, this process requires careful planning and due diligence.

EB5AN can help you with your EB-5 application process. In over 10 years of practice, we’ve helped more than 2,300 families relocate to the U.S. We offer our clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate to date.

To learn more about the EB-5 visa and the best investment strategies for you and your family, please schedule a one-on-one call with our EB-5 experts today.