Are family members of an EB-5 investor granted conditional permanent residence?

Yes, certain family members of an EB-5 investor may be granted conditional permanent resident status through the EB-5 program. As part of the program’s regulations, all EB-5 investors are permitted to claim their spouse and any unmarried children under the age of 21 as derivative beneficiaries. As derivatives to the principal, these family members are able to accompany the EB-5 investor’s immigration petition and enjoy the same rights and privileges as the investor once lawful permanent resident status has been conferred.

It is important to note that only the family members specified above are allowed to be claimed as derivatives. Other relatives such as parents, grandparents, grandchildren, aunts, uncles, nieces, nephews or cousins are not permitted to be claimed as derivative beneficiaries. Stepchildren or adopted children may be permitted to be claimed as derivatives provided certain conditions particular to each category are satisfied.

The actual number of family members per EB-5 investor is not a consideration. For any derivative children who are older in age, it is important for the EB-5 investor to ensure they file Form I-526 before the child turns 21 to prevent disqualification from being claimed as a derivative. However, while the Child Status Protection Act (CSPA) prevents most children from aging out, it does not account for the waiting times caused by visa retrogression. Consequently, EB-5 investors from countries facing significant backlog should file Form I-526 well ahead of any derivative children turning 21.

Conditional Permanent Resident Status

Once consular processing or adjustment of status has been successfully completed, the EB-5 investor may apply for an EB-5 visa and conditional green card. Upon issuance, any derivative beneficiaries the EB-5 investor has attached to the immigration petition will also be granted conditional permanent resident status.

The conditional residency period lasts for two years, after which it will automatically expire. The EB-5 investor must file Form I-829 for removal of conditions within 90 days preceding the expiration of their conditional green card, after which a 24 month extension will be granted by United States Citizenship and Immigration Services (USCIS).

Apart from the two-year time limit, conditional permanent resident status entitles the holder to all the same rights and privileges as lawful permanent resident status.