An EB-5 investor is unable to add a spouse as a derivative beneficiary after they have already received conditional permanent U.S. resident status. At that point, the EB-5 investor will need to petition for the spouse by submitting Form I-130—Petition for Alien Relative. However, the spouse will have to go through the entire visa process. This means that they will not receive their visa until their priority date becomes current.
Derivative Beneficiary
A derivative beneficiary is a visa applicant who is the spouse or unmarried child under the age of 21 of a primary applicant. In this case, the primary applicant is the EB-5 investor. Derivative beneficiaries have to meet the same checklist requirements as a primary applicant, and are also afforded the same benefits of conditional permanent resident status as the primary applicant.
Priority Dates & The Visa Process
The date that United States Citizenship and Immigration Services (USCIS) receives and files the I-526 petition is the filing date. Also known as the receipt date or priority date, this is the day that the complete petition package—including any applicable fees—is received and filed by the agency, creating a new case. Once this is complete, USCIS issues a receipt notice to notify EB-5 applicants of their priority date and confirming the payment was received.
The filing date—or priority date—is important because it is helpful in determining the processing time for an EB-5 visa. Once Form I-526 has been submitted, EB-5 investors must wait for approval. This is the part of the process that is known to take the longest, as there is a high volume of petitions for USCIS to get through.
There is a way for visa applicants to check the status of their priority date, using the Check Processing Times page of the USCIS website. Applicants will need to select their appropriate form from the drop down menu and they will get an estimate of their processing date. The timeframe listed is simply an approximation, however, and not a definite deadline.
