Can a derivative beneficiary living in the United States as a nonimmigrant adjust status even if the principal applicant consular processes?

Unless the principal EB-5 investor has already successfully completed consular processing and has been granted a conditional green card, the derivative beneficiary who is residing in the United States under nonimmigrant status would be unable to file for adjustment of status. In general, it would be best for the principal EB-5 investor and any derivatives to undergo consular processing together.

According to Chapter 6, Section C of the Policy Manual of United States Citizenship and Immigration Services (USCIS), derivative beneficiaries derive their status from the principal applicant “because the spouse and children do not independently have a basis to adjust status outside of their relationship to the principal immigrant.”

EB-5 Consular Processing

An EB-5 investor who is living overseas and has been granted approval of Form I-526 must undergo consular processing to progress to the next step of the EB-5 process.

Consular processing entails filing Form DS-260 and attending an interview at the U.S. embassy or consulate office in the investor’s home country. Form DS-260 will require biographical information from the EB-5 investor, as well as details on the investor’s history of past addresses, employment and any records of military service.

EB-5 Adjustment of Status

The EB-5 Reform and Integrity Act of 2022 introduced EB-5 Concurrent Filing, which allows certain EB-5 investors already residing in the United States under specified non-resident visas to simultaneously adjust status while filing Form I-526. The provision is applicable to any foreign national with a valid H-1B, E-2 or F-1 visa. It enables EB-5 investors to benefit from the rights and privileges of lawful permanent resident status while waiting for their I-526 petition to be processed and adjudicated. Note, however, that this provision is applicable only to principal EB-5 investors, not derivative beneficiaries.

To file Form I-485, the applicant must provide truthful and accurate biographical information and meet certain requirements. In addition to appending copies of their personal records, passport, visa, photos, medical records, criminal history records, Form I-797C (Notice of Action) and Form I-130A, they must also attend a biometrics appointment.

It is highly recommended for all EB-5 investors to work with an immigration attorney when either filing for adjustment of status or consular processing.