How might a stepchild be included as a derivative beneficiary of an EB-5 investor?
A stepchild may be included as a derivative beneficiary of an EB-5 investor, provided they meet a number of eligibility requirements.
First, the stepchild must be unmarried and under the age of 21 when the EB-5 investor files Form I-526. This is a requirement for any dependent children, biological or otherwise, who the EB-5 investor wishes to attach to their EB-5 visa application.
The Immigration and Nationality Act (INA) offers two definitions of “child”. While the definition used for naturalization and citizenship excludes stepchildren, the definition used for visa and visa petition purposes, including the EB-5 visa, includes stepchildren as long as they fulfill certain conditions. According to United States Citizenship and Immigration Services (USCIS), the official definition of a “child” for immigration purposes is an unmarried person under the age of 21.
Second, the stepchild must have been under the age of 18 when the marriage between their biological parent and the EB-5 investor took place. This would constitute a qualifying step-relationship between the EB5 investor and their stepchild. The stepchild would most likely not be able to be considered the legal child of the EB-5 investor or stepparent if their biological parent divorces or separates from the EB-5 investor, or if either parent dies.
Third, to include their stepchild as a derivative beneficiary, the EB-5 investor must append certain documentation to their I-526 petition. These documents will likely include, but are not limited to, marriage certificates, birth certificates, divorce decrees, or death certificates. In essence, the EB-5 investor would need to prove that their spouse has legal custody of the stepchild, that the stepchild meets the aforementioned qualifications to be legally classified as a “child” for immigration purposes, and that the EB5 investor married the stepchild’s biological parent before the stepchild turned 18.
All EB-5 investors are advised to hire and work with an immigration attorney to help ensure their I-526 petition and all applications thereafter are properly documented and filed with the highest possibility of approval.