How do additional family members affect an EB-5 petition?
My daughter is 19 years old and a full-time student in a U.S. university. We are interested in applying for EB-5, but I am not sure if we should apply just for my daughter, or for ourselves as well (myself and my wife). If we apply for EB-5 as a family of three versus just for my daughter, what would the differences be?
As long as the EB-5 petition is filed before your child turns 21, the child will be able to apply for conditional permanent residency even if the child has turned 21. However, based on the Chinese retrogression, the child who is about to turn 21 may not be able to apply for conditional permanent residency.
The answer to your question depends upon the country of birth for you and your wife. If that country is China, then you should strongly consider gifting the funds to your 19 year old daughter, if the main purpose of your EB-5 investment is to obtain her green card. The reason is that there will be significant delay due to the EB-5 immigrant visa cut-off date for China-born investors. The wait currently is about two years, but that is for petitions filed two years ago. For petitions by China-born EB-5 investors filing today, the wait could be much longer, as much as six years, if the U.S. Congress does not change the EB-5 laws. If you both were not born in China, then the issue is not very important. As a general rule, an immigrant case, such as EB-5 includes the principal applicant, the applicant's spouse, and any unmarried children under 21 years of age.
You can include all derivative beneficiaries in the initial I-526 petition, but there will need to be some additional planning for obtaining your green cards. Some may go through the consulate, but your daughter may be able to file for adjustment without leaving the United States. There is a lot of timing involved. Please consult an attorney.
You may apply as the investor and your spouse and child under the age of 21 will obtain a green card as derivatives. Or if you and your wife are not ready to move (or simply you do not want to move) to the United States, then your daughter may be the investor (you may want to gift her the money) and only she will become a lawful permanent resident. In your situation, since your daughter is under the age of 21, you have the option to immigrate your family with one investment. However, if you want to do so, I suggest to start the process sooner rather than later since she will soon reach 21.
If you apply just for your daughter, then you would not be included in the application. If you apply just for yourself, then your daughter would not be included. If you apply as a family, with a principal and your spouse and daughter as derivatives, you would all be included. It is crucial that your daughter does not age out prior to the respective adjustment or consular processing approvals.
John J Downey
The number of family members does not affect the petition. You might need to concern yourself with your daughter aging out (being over 21) when you file. I would act soon.
If you wanted green cards for the family, one parent would have to apply (and the spouse would also get a green card) and the green card would have to be obtained for your daughter before she reaches 21. After the daughter reached 21, she would not be eligible for the green card. If the application was in your daughter's name, the parents would not get green cards.
U.S. immigration laws promote keeping the family together as much as possible when processing the immigration paperwork. Thus, a person who is seeking permanent residency is allowed to bring his/her spouse and all of their unmarried children under 21 years of age. There is no added benefit or detriment for the whole family applying together versus your daughter alone. In your situation, you could be the main investor and could bring your 19 year old daughter with you if you file your I-526 soon, unless you are from mainland China where the visa number has retrogressed and is not current. If you are from mainland China, then it will be beneficial for your daughter to become the main investor to obtain her permanent residency based on EB-5 because it is likely that she will not get the status as your derivative.
Depending on who is the EB-5 investor (i.e., your daughter, you, or your spouse) there are differences in who can be included in the final green card processing as derivative beneficiaries of the EB-5 investor. Couple of points you should keep in mind: if your daughter is 19, when she turns 21 she will no longer qualify as a derivative beneficiary of your or your wife's EB-5 petition, as she will "age-out," and if your daughter will be the EB-5 investor, then you, as parents of the investor, will not qualify as derivative beneficiaries (since only a spouse and kids under 21 are included as derivative beneficiaries). Timing is the most critical part in deciding who will serve as the EB-5 investor in your family's situation it seems.