How can I count my ward as a derivative when filing for the EB-5 Immigrant Investor Program?

Derivative beneficiaries usually include a spouse, and any biological, adopted or step children who are unmarried and under 21 years of age. A ward may not fall into that definition of a child for immigration purposes, but there may be other options.

Depending on the age of the ward and the background, you may adopt the child. The ward, now your child, may be included as a family member in respect to your filing of the I-526 petition. Obtaining the advice of an experienced EB-5 immigration attorney is your next step.

You must adopt her before she turns 16 to count her as your immediate relative and include in your EB-5 case. Otherwise, only a spouse and adopted or biological children under age 21 who are not married are considered your immediate relatives.

When you apply for an immigrant visa based upon an approved EB-5 investor petition on Form I-526, you can apply for yourself and also your immediate family, which is defined as your spouse and your unmarried children under the age of 21. As such, your ward would not count as a child. In order to count as a child, she would have to be formally adopted by you before she turns 16 years of age. You will also need to show proof of legal custody for at least 2 years.

Adopt your ward before she turns 15 years of age.

According to United States immigration law, dependents include only spouses and children (biological or adopted) under the age of 21. Wards are not considered dependents. If she is under the age of 16, you can adopt her and she would be included as your dependent for U.S. immigration purposes.

Generally, you cannot include a ward as a relative. In fact, you are more or less a foster parent. In most cases, family law in your jurisdiction applies in this circumstance and, in an immigration situation, adoption is usually a better option for changing the relationship from a ward to a member of the family. Further, to perfect the adoption process, you must either comply with the Hague Convention or non-Hague Convention (orphan adoption) legal process, depending on which adoption law is applicable between the United States and your country of origin. The rule is, to use the Hague Convention, your country of origin must be a signatory to the conventionotherwise, you can only use non-Hague Convention. Advisably, consult an international/adoption attorney who can assist in putting the adoption in place as soon as possible so that you can include the child in your EB-5 petition.

In order to include your ward, they have to be eligible as a child. To do so, you must complete adoption procedures and the child must be under 16 to do so. If you do not have a family lawyer, you should get one as soon as possible.

You can include her as a dependent/derivative if you legally adopt her as a minor.