Does an EB-5 investor have to include his or her spouse on the application if the spouse does not intend to pursue the EB-5 visa?

There is no requirement that stipulates an EB-5 investor must include their spouse as a derivative beneficiary in their EB-5 application. However, it is highly advisable for the EB-5 investor to list their spouse early on in the EB-5 process, regardless of whether the spouse intends on immigrating with the primary applicant.

In general, it is more prudent for an EB-5 investor to list their direct family members, including spouse and unmarried children under the age of 21, on their I-526 petition in the interest of full disclosure and transparency. If a spouse is initially listed as a derivative beneficiary and later decides not to proceed with relocation, there are no repercussions and this will not affect the EB-5 investor’s application. On the other hand, if the spouse is listed and later decides they do want to pursue immigration, they will naturally be able to reap the benefits of being a derivative beneficiary and enjoy the same rights and privileges as the EB-5 investor, once permanent resident status has been granted and the U.S. green card issued. United States Citizenship and Immigration Services (USCIS) requires all petitioners to fill out forms accurately and truthfully, so even if the investor’s spouse does not intend on pursuing an EB-5 visa, it is nonetheless better to list their name on the I-526 petition and provide any required information or documentation, such as marriage certificates.

Willfulness: USCIS Policy Manual

Regardless of whether the EB-5 investor intends on including their spouse as a derivative beneficiary, they must truthfully answer any questions related to marital status on their I-526 petition. In accordance with the Policy Manual of USCIS, silence or failure to volunteer information does not necessarily constitute fraud, but can lead to a finding of willful misrepresentation if it is determined the individual consciously concealed information.

It is also more advantageous for the investor to list their spouse (or any other qualifying direct family member) in the interest of efficiency. It may be challenging to belatedly include a spouse as a derivative beneficiary, should the spouse change their mind further into the EB-5 process. Therefore, EB-5 investors are best advised listing all eligible family members when filing Form I-526.