Can an unmarried adopted child under age 21 be included on an EB-5 application?

An unmarried adopted child under the age of 21 may be claimed as a derivative beneficiary for EB-5 purposes provided a number of conditions are satisfied.

According to the website of United States Citizenship and Immigration Services (USCIS), the definition of a “child” for immigration purposes may include “an adopted child if the child was adopted before age 16…and the adoptive parent has satisfied 2-year legal custody and joint residence requirements.”

The EB-5 investor/parent must also establish beyond doubt that the adoption was full and final.

However, exceptions may apply depending on the circumstances. USCICS outlines certain extenuating factors to these requirements, namely; if the adopted child was adopted after their 16th birthday but before they turned 18, they may still be classified as a child for immigration purposes as long as they meet one of the following two conditions: (i) the adopted child is the birth sibling of another child who was adopted by the same parents before their 16th birthday and immigrated to the United States via the family-based petition process, or (ii) the adopted child is the birth sibling of another child who was adopted by the same parents before their 16th birthday and immigrated to the United States as an orphan based on the same parents’ adoption process.

Additionally, there are a number of regulations and guidelines surrounding the 2-year legal custody and joint residence requirements. For example, the legal custody must have been formally issued by a court or official legislative institution.

Some allowances surrounding the requirement are as follows: The legal custody and joint residence requirement may be satisfied by custody and residence that took place before the adoption. While it is not mandated for legal custody and joint residence to have co-existed on the same timeline, it is necessary for each requirement to be fulfilled for a collective 2-year duration. Also, if both parents formally adopted the child, only one parent needs to satisfy the legal custody and joint residence requirement, but the two years of aggregate cannot be divided between them. Finally, the requirement may be waived for certain abused children.

Granted the aforementioned requirements are met, an EB-5 investor may claim their adopted child as a derivative beneficiary on the EB-5 application.