Does it matter which spouse is the principal EB-5 applicant?

One of the many benefits offered through the EB-5 program is that immediate family members can qualify for the EB5 visa alongside the principal investor. This includes the investor’s spouse and unmarried children under the age of 21. For married couples, either spouse can serve as the principal EB-5 applicant — the choice is up to the couple and in most cases has no bearing on the immigration process. Personal circumstances of the couple can affect this decision, such as who can reside in the United States for the duration of the investment period.

In the EB-5 program, an investor’s country of birth is used as the “country of chargeability”. This determines which nation will be used for visa number/priority date purposes. Under regular circumstances, an EB5 applicant cannot change their country of chargeability. However, in married couples, “cross-chargeability” is allowed when the principal applicant’s spouse is born in a different country than the main applicant. This allows an investor to be “charged” to their spouse’s birth country instead of their own. It is important to note that cross-chargeability cannot be used to charge the parent with the child’s country of birth. Cross-chargeability can be extremely beneficial to married couples when the principal applicant’s birth country is experiencing visa retrogression. By using their spouse’s birth nation as their country of chargeability, an EB5 applicant and their immediate family members can avoid backlogs and obtain visas faster.

Typically, if one spouse generates the funds used in the investment, they are the primary applicant. However, this is not necessary. As for the source-of-funds, the personal assets of one spouse or both can be included in the investment — their assets are interchangeable. When deciding which spouse will serve as the principal EB5 applicant, a couple should consult an experienced EB-5 immigration attorney. This can help determine the best course of action and ensure a smooth and efficient application process.