An EB-5 investor’s stepchild may be considered a derivative beneficiary as long as a number of conditions are satisfied. As with all derivative children, the stepchild must be unmarried and under the age of 21 at the time the primary investor files Form I-526. Furthermore, the stepchild must have been under the age of 18 when their parents married.
According to the website of United States Citizenship and Immigration Services (USCIS), the definition of a derivative beneficiary is as follows: “… an alien who cannot be directly petitioned for, but who can follow-to-join or accompany the principal beneficiary based on a spousal or parent-child relationship.”
The USCIS definition of an immediate relative is “generally a relative of a United States citizen who is not subject to numerical limitations placed on immigrant visas.” The following individuals are considered immediate relatives: spouses of a U.S. citizen, children (unmarried and under 21 years of age) of a U.S. citizen and parents of a U.S. citizen if the U.S. citizen is at least 21 years of age.
For EB-5 purposes, the primary investor’s spouse and unmarried children under the age of 21 qualify as derivative beneficiaries, but parents of the primary investor would not be able to be included in the investor’s application.
To attach a stepchild as a derivative beneficiary to their application, the EB-5 investor will be required to submit documentation that proves the existence of a qualifying step-relationship. Such documents may include marriage certificates, birth certificates, divorce decrees or death certificates. The submission of a marriage certificate would be used to prove that the marriage between the EB-5 investor and the stepchild’s birth parent took place before the stepchild turned 18, and the submission of the stepchild’s birth certificate used to verify the stepchild’s age. If applicable, it may also be necessary for the investor to provide copies of documents showing that any prior marriages were legally terminated.
Overall, the EB-5 must prove that their spouse, or the stepchild’s birth parent, has legal custody of the stepchild, that the marriage to their spouse took place before the stepchild’s 18th birthday, and that the stepchild meets the requirements to be considered a “child” for immigration purposes.