The new family member(s) should be eligible for a green card provided the new family relationship exists before the EB-5 investor applies for a U.S. green card/EB-5 visa. In other words, as long as the EB-5 investor marries or has a child after filing Form I-526 but before adjusting status or undergoing consular processing, the new family member should be able to be included in their application as a lawful derivative beneficiary.
In this particular situation, timing is critical, so any EB-5 investor who is anticipating marriage or a newborn after filing Form I-526 should seek counsel from an experienced immigration attorney for guidance on how best to proceed.
The EB-5 visa program allows investors to attach lawful derivative beneficiaries to their application. These derivatives will be able to acquire the same immigration benefits as the primary applicant by proxy. An EB-5 investor’s dependents include their spouse and unmarried children under the age of 21. They become derivatives once the EB-5 investor files Form I-526 and attaches them to the application. After approval of Form I-526, the derivatives concurrently apply for the EB-5 Visa and U.S. green card with the primary applicant/EB-5 investor, whether through adjustment of status or consular processing.
Applying for an EB-5 Visa
After receiving approval of Form I-526, the EB-5 investor must either adjust status or undergo consular processing to be granted conditional permanent resident status.
If the EB-5 investor was previously already residing and working in the United States under a valid nonimmigrant visa, they may be eligible for concurrent filing of Forms I-526 and I-485. In this case, the EB-5 investor is simultaneously granted lawful permanent resident status once their I-526 petition has been adjudicated.
If the EB-5 investor is residing overseas in their home country at the time their I-526 petition is approved, they must undergo consular processing to be granted a conditional green card. Consular processing entails filing Form DS-260 and attending an interview at the U.S. embassy/consulate office in the EB5 investor’s home country.