What EB-5 Principal and Derivative Applicants Should Know About Form I-485

Filing Form I-485 marks the moment an EB-5 investor applies for a conditional Green Card.

EB-5 investors and their eligible family members can become lawful permanent residents of the United States upon receiving approval of their I-485s. Each investor should understand how the application process works—including the different requirements for principal and derivative applicants—to avoid possible delays or rejection.

In this article, we will cover the differences between EB-5 applicant categories, why Form I-485 matters, and how to get Green Cards under the EB-5 program.

What Is Form I-485 and Why Is It Important?

Filing Form I-485 is a key part of the EB-5 immigration process.

EB-5 immigrant investors can submit Form I-485, Application to Register Permanent Residence or Adjust Status, once they are inside the United States and ready to apply for lawful permanent residency. Approval of this form makes them conditional Green Card holders.

An approved I-485 allows a qualified individual to officially change their non-immigrant status to lawful permanent resident status, which comes with many additional benefits. Lawful permanent residents can also apply for U.S. citizenship after five years if they wish.

The I-485 application and approval process can be lengthy. Applicants must meet U.S. Citizenship and Immigration Services (USCIS) eligibility criteria and receive USCIS approval of their immigrant petition to proceed. Applicants must also submit many supporting documents and usually participate in an interview and biometrics appointment.

An application delay or rejection would be costly, so each member of your family should know whether they are a principal or derivative applicant in advance and file accordingly.

What Is an EB-5 Principal Applicant?

An EB-5 investor is the principal applicant (also called the principal beneficiary). This is the individual who starts the EB 5 process by investing in a new commercial enterprise in the United States.

The minimum investment amount is ordinarily $1,050,000 (or $800,000 if the project is located in a targeted employment area).

The principal applicant is responsible for creating at least 10 full-time jobs for American workers with this investment. This person also files Form I-485 and the other required documentation.

A principal applicant who fulfills all of the EB-5 program’s requirements receives lawful permanent resident status for themselves and eligible family members, who are also called derivative applicants.

What Is an EB-5 Derivative Applicant?

Each EB-5 derivative applicant is an eligible immediate family member (dependent) of the principal applicant.

However, not all relatives of the investor automatically become derivative applicants; only the investor’s spouse and unmarried children under the age of 21 at the time of application filing may count. Parents and siblings do not fall under this category.

A derivative applicant does not have to make a separate EB-5 investment. As long as the principal applicant’s immigrant petition is approved, each derivative applicant can gain the same immigration benefits without having to fulfill similar responsibilities.

Examples of Principal and Derivative Applicants

Kumar, his wife, son (age 12), and daughter (age 8) are citizens of India. Kumar has been working with EB5AN to invest under the EB-5 program. When he is ready to adjust his immigration status by filing Form I-485, he will be considered the principal applicant.

Kumar’s wife and children will each file a separate derivative applicant I-485 application. Each one qualifies as a derivative applicant because they meet the criteria and have derived their eligibility from Kumar, the principal applicant.

Kumar’s parents, brothers, and sisters are also Indian citizens. They are also Kumar’s immediate relatives, but they are not principal applicants or derivative applicants. None of them has made a qualifying EB-5 investment. Only Kumar’s spouse and unmarried children under the age of 21 can derive the same immigration benefits as he from this petition, so his parents and siblings are ineligible.

Adjustment of Status

When Can a Principal Applicant Adjust Their Immigration Status?

A principal applicant has some flexibility in applying to adjust their immigration status.

The first option involves waiting until after USCIS has approved their Form I-526 immigration petition and an immigrant visa number is available.

The second option—which is more desirable for most EB-5 investors—involves concurrent filing of Form I-526/I-526E and Form I-485 if the applicant is eligible to apply and an immigrant visa is available. Concurrent filing is recommended in most cases because it saves time and can speed up the EB-5 visa approval process.

When Can a Derivative Applicant Adjust Their Immigration Status?

A derivative applicant cannot adjust their immigration status until after the EB 5 principal applicant has been approved to receive lawful permanent residence status. Derivative applicants must also ensure visas are available and that they have fulfilled program filing criteria.

Like principal applicants, derivative applicants have choices when it comes to the timing of their I-485 submission. They can choose to file:

• At the same time as the principal applicant’s I-485 submission.
• After the principal applicant submits Form I-485 to USCIS.
• After the principal applicant receives an immigrant visa and becomes a lawful permanent resident of the United States.

Let’s consider a specific case of a derivative beneficiary and the options they’ll have in changing their immigration status.

Should a Derivative Beneficiary in the United States on an F-1 Visa File Form I-485 or Go Through the Consular Process With the Principal Applicant?

A derivative beneficiary in the United States on an F-1 student visa can gain conditional residency by either:

• Adjusting their status.
• Going through consular processing.

Which route the foreign national should take depends on their individual circumstances.

Immigration law can be complicated; foreign nationals are advised to consult an EB5 immigration attorney to determine the best course of action.

Sometimes the derivative beneficiary is in the United States at the time of I-526 petition approval but the EB5 investor is not. In this case, the best option is most likely to have the derivative return home and go through consular processing with the principal applicant.

Alternatively, the derivative in the United States can wait for the principal applicant to receive permanent resident status. At this point, the derivative can file Form I-485 to adjust status.

Consular Processing

A derivative may choose to return to their home country and go through consular processing alongside the principal applicant. This process involves:

1. Filing Form DS-260, Immigrant Visa Electronic Application.
2. Once the application has been processed, the EB5 investor and derivatives will need to attend a visa interview at the U.S. consulate or embassy in their home nation. A consular officer will determine whether the applicant is eligible for an EB5 visa.
3. The derivative can then return to the United States alongside the principal applicant on a conditional Green Card.

Adjustment of Status With an F-1 Visa

Instead of going through consular processing, derivatives also have the option of remaining in the United States and adjusting their immigration status. If the derivative intends to adjust status while the principal applicant goes through consular processing, the principal applicant must obtain lawful permanent resident status and enter the United States before the derivative files their I-485 application.

A foreign national can only file to adjust status if they have lawful status in the United States. Therefore, it is crucial for the derivative to maintain their F-1 status until their I-485 application is approved.

Additionally, foreign nationals are advised not to travel outside of the United States after filing Form I-485 until it is approved.

How Do You File Form I-485?

Essential Steps in the I-485 Petition Process

These are the main steps and relevant evidence that EB-5 investors and eligible family members should remember while filing Form I-485:

1. Confirm you are eligible to file Form I-485: You must be located in the United States, file an I-526/I-526E immigrant petition, and fulfill other EB-5 adjustment of status and immigration criteria.
2. Assemble needed paperwork: Gather your filled out I-485, government-issued ID (passport or driver’s license), birth certificate, marriage certificate (if applicable), and divorce certificate (if applicable).
3. Get passport photos: Have two copies of passport-style color photographs taken during the 30-day period before you file.
4. Gather immigration documents: Get copies of documents showing that you were inspected by an immigration officer, such as Form I-94 Arrival-Departure Record or a passport page with a parole stamp or visa.
5. Assemble criminal records: Provide documentation of criminal history, if applicable.
6. Compile medical records: Collect medical exam results and vaccination records.
7. Tell family members to submit biographic information: An applicant’s qualified immediate relatives should each fill out and submit Form I-130, Petition for Alien Relative.
8. Pay the filing fee: Include the correct filing fee. Effective April 1, 2024, this is $1,440.
9. Submit the I-485 petition: Mail hard copies of I-485 petitions to a USCIS lockbox.
10. Be ready to participate in a biometrics appointment and interview: USCIS may require you to provide fingerprints, photographs, and/or your signature at a biometrics appointment, and may also want to ask you questions during an interview. If applicable, USCIS will notify you of the time, date, and location of your appointments.

I-485 Best Practices

Principal and derivative applicants can follow these additional I-485 best practices to improve their odds of getting approved quickly:

• Confirm you are using the most recent edition of Form I-485.
• Study and follow the filing instructions carefully.
• Answer questions fully and accurately.
• Type your responses or write them out using a black pen.
• Review this checklist of required evidence.
• Work with an experienced immigration lawyer to draft the I-485 and respond to any legal issues that may arise.
• Include a complete Form I-693, Report of Immigration Medical Examination and Vaccination Record, signed by a civil surgeon.
• File Forms I-485 and I-526 concurrently.
• Respond to any questions from USCIS quickly.

Don’t risk losing your immigrant visas by trying to navigate this process by yourself; be sure to work with a leading EB-5 company to give yourself and your family the best chance of success.

Work With EB5AN to Get Your Green Cards Faster

To ensure you receive lawful permanent residence status, it pays to work with professionals.

EB5AN has helped more than 2,300 families from 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and offers clients first-rate, low-risk EB-5 regional center projects with 100% USCIS project approval rate to date.

If you have questions about anything from project selection and regional center sponsorship to EB-5 compliance and risk mitigation, book a call with us today to receive in-depth support from our EB-5 team.