Many foreign investors have a question when pursuing the American dream through the EB-5 Immigrant Investor Program: Does the EB-5 visa cover spouse and children? The answer is yes, but the nuances are important. The EB-5 program is not just a pathway for investors to gain U.S. permanent residency; it can also extend to immediate family members—specifically spouses and unmarried children under 21. However, understanding the eligibility, documentation, legal timing, and benefits is essential to ensuring your entire family can transition smoothly to the United States.
This comprehensive guide will explain everything you need to know about EB-5 visa spouse and family coverage, including what qualifies a family member, how marriage timing impacts eligibility, and what steps to follow after green card approval.
What Is the EB-5 Visa Program?
The EB-5 Immigrant Investor Program is a U.S. government initiative administered by the United States Citizenship and Immigration Services (USCIS). Established in 1990, it was designed to stimulate the U.S. economy through job creation and capital investment by foreign investors. It offers an attractive route to lawful permanent residence—commonly known as a green card—for investors and their immediate family members.
To qualify, a foreign national must invest either $1,050,000 in a new commercial enterprise (NCE) or $800,000 if the investment is made in a Targeted Employment Area (TEA), typically rural regions or areas with high unemployment. In addition to the financial commitment, the investor must demonstrate that their investment will create or preserve at least 10 full-time jobs for qualifying U.S. workers.
Successful EB-5 applicants obtain U.S. green cards for themselves, their spouses, and their children, opening the door to permanent residency. This makes the program especially appealing for families seeking long-term residency in the United States.
For those interested in ensuring a seamless application process, consulting with a knowledgeable immigration attorney like Sweta Khandelwal can provide valuable insights into how the EB-5 program can benefit your family.
Who Qualifies as a Derivative Beneficiary?
In immigration law, a derivative beneficiary is a family member of the principal visa applicant eligible for immigration benefits under the same application. This inclusion is one of the most attractive features of the EB-5 program, as it allows investors to bring their immediate family to the United States.
Under EB-5 rules, the following individuals may qualify as derivative beneficiaries:
- The legal spouse of the EB-5 investor. This includes partners in heterosexual and same-sex marriages, provided the marriage is legally recognized in the country or state where it took place.
- Unmarried children under the age of 21. This includes biological children, stepchildren, and legally adopted children, as long as they meet USCIS eligibility criteria.
However, extended family members—such as parents, siblings, cousins, or married children—do not qualify as derivative beneficiaries under the EB-5 program. If these individuals wish to immigrate, they must pursue separate visa routes, which could involve long waiting periods.
To ensure smooth processing, family members should ideally be listed in the initial I-526E petition. If not included at the beginning, they must be added before the green card is issued, or they may need to apply through separate channels later.
Timing of Marriage Matters
The timing of your marriage can significantly influence whether your spouse will qualify for derivative beneficiary status under the EB-5 program. USCIS is very specific about this detail, and failure to meet the timing requirements can lead to significant complications or disqualification.
Let’s break down the different scenarios:
- Married Before Filing the I-526E Petition
If you are already married before submitting your I-526E immigrant petition, your spouse can be included as a derivative beneficiary. This is the most straightforward and recommended route for married investors.
- Married Before Receiving Green Card Approval
Even if the marriage occurs after filing the I-526E, before your EB-5 green card is approved, your spouse can still be added to your petition. However, additional paperwork and USCIS notifications will be required. Still, this option remains viable and avoids needing a separate petition.
- Married After Receiving Permanent Residency
If your marriage occurs after receiving your EB-5 green card, your spouse cannot be added as a derivative under the same EB-5 application. In this case, you must sponsor them through a family-based immigration petition (Form I-130).
This delay could extend the immigration process by several months or even years, depending on visa category backlogs and processing times. Finalising and legally documenting the marriage early is essential for couples considering future marriage, preferably before filing the I-526E or receiving conditional green card approval.
Navigating the timing and paperwork with an expert can save time and prevent complications. Consider professional guidance from Sweta Khandelwal to optimize your application.
Does the EB-5 Visa Cover Spouse and Dependents?
One of the most common questions prospective EB-5 investors ask is: “Does the EB-5 visa cover my spouse and children?” The answer is a reassuring yes, but only for qualifying family members. This coverage includes:
- The legally married spouse at the time of or before green card approval.
- Unmarried children under the age of 21, regardless of whether they are biological, stepchildren, or adopted.
These individuals can receive conditional permanent residence simultaneously as the principal applicant. They are granted the same two-year conditional green card, after which they must apply to remove conditions (via Form I-829) with the primary investor.
This provision allows families to stay together while establishing their lives in the United States. It also grants access to benefits like work authorization, education, and social services. However, it’s crucial to maintain clear documentation and compliance throughout the process to avoid delays or denials.
If you plan to include your spouse and dependents, ensure the timing and paperwork align with USCIS requirements.
What About Children Turning 21?
One of the most urgent concerns for families pursuing the EB-5 visa is what happens when a child is nearly 21. Under standard U.S. immigration law, once a child turns 21, they “age out” and are no longer considered a dependent. However, the Child Status Protection Act (CSPA) provides a crucial exception for EB-5 families, helping to preserve the child’s eligibility even if the application process extends over several years.
Legal Framework: The CSPA Advantage
The CSPA allows the child’s age to be “frozen” when USCIS processes the Form I-526E. For example, if the I-526E takes 10 months to be approved, that time is subtracted from the child’s actual age when determining eligibility. This provision can mean the difference between inclusion and exclusion for children nearing the age limit.
Key Considerations:
- The child must remain unmarried throughout the process to qualify as a derivative beneficiary, even if their age is protected under the CSPA.
- Timing is critical: if your child is approaching the 21-year mark, file the I-526E as early as possible and monitor progress closely.
- Once the petition is approved, families should act swiftly to complete the green card process to avoid complications that could lead to the child aging out before their permanent residency is granted.
While the main question often revolves around “Does the EB5 visa cover spouse?” the answer for children is more nuanced. Children are involved, but their age and marital status are pivotal in determining eligibility. Planning can safeguard their place in the process.
An immigration firm like The Law Offices of Sweta Khandelwal can offer strategic advice tailored to your family’s situation, helping you navigate complexities like the Child Status Protection Act effectively.
How Does the Application Process Work for Spouses?
Once the EB-5 investor’s I-526E petition is approved, the journey moves into the green card phase. At this stage, spouses and children, including derivative beneficiaries, will apply for permanent residency alongside the primary investor. There are two distinct application paths depending on whether the applicant is inside or outside the United States.
- Adjustment of Status (AOS) – Inside the U.S.
For spouses already residing in the U.S. on a valid visa, the next step involves filing Form I-485 (Application to Register Permanent Residence or Adjust Status). This route allows applicants to remain in the country legally while their green card is being processed.
Benefits:
- No need to leave the U.S. for interviews.
- Eligible for work and travel permits (EAD and Advance Parole) during processing.
- Typically faster and more streamlined.
- Consular Processing – Outside the U.S.
Consular processing is required for spouses living outside the United States. After USCIS approves the I-526E, the case is transferred to the National Visa Center (NVC) and then to the U.S. embassy or consulate in the investor’s home country.
What to Expect:
- In-person interview at a U.S. embassy or consulate.
- Comprehensive background check, biometric screening, and medical examination.
- Submission of all required documents before the interview.
Each derivative family member, including the spouse, must complete their part of the application process correctly and independently. So, does the EB5 visa cover a spouse in both AOS and consular scenarios? Yes—but only if all legal requirements are fulfilled and documentation is accurately submitted.
What Documents Are Required?
In the EB-5 process, documentation is everything. Including your spouse as a derivative beneficiary isn’t just about proving you’re married—it’s about providing comprehensive, verifiable evidence to USCIS or the Department of State that supports your spouse’s eligibility.
Essential Documents Include:
- Valid marriage certificate: Must be recognized under U.S. and local laws where the marriage took place.
- Passports for each applicant: Should be valid and current throughout the process.
- Birth certificates: These help confirm identities, relationships, and nationalities.
- Police clearance certificates: Required for applicants over a certain age to confirm the absence of criminal history.
- Medical examination reports: Must be completed by authorized civil surgeons or panel physicians.
- Proof of lawful status (for AOS cases): Including copies of current visa, I-94, and other immigration records.
All documents must be translated into English if they were originally in another language. They often require notarization or apostille certification, depending on the country of origin.
So, does the EB5 visa cover a spouse with just a marriage certificate? Not at all. While the certificate is essential, it’s only part of a larger, critical documentation package. Accuracy, authenticity, and completeness are key to avoiding delays or rejections.
Ensuring these documents meet all legal standards can be complex. It might be beneficial to have an experienced immigration attorney, like Sweta Khandelwal, review your documentation.
What Is Cross-Chargeability and Can It Help?
One strategic option many EB-5 investors overlook is cross-chargeability, a provision that can significantly reduce wait times for green card issuance when visa numbers for specific countries are backlogged.
How Cross-Chargeability Works:
U.S. immigration law allows the visa chargeability (i.e., the country that determines your visa availability) to be based on either:
- The country of birth of the principal applicant (investor), OR
- The country of birth of the spouse offers a more favorable outcome.
When Is It Helpful?
Cross-chargeability is especially advantageous for investors from countries like India, China, or Vietnam, where visa demand exceeds the annual quota, causing delays of several years.
Example:
- The investor was born in India (with a significant visa backlog).
- Spouse is born in Brazil (with no backlog).
- By applying under the spouse’s country of chargeability (Brazil), the family can skip the long waiting line associated with India.
Why This Matters:
This strategy speeds up the green card process and increases the likelihood of children under 21 remaining eligible under CSPA protections.
Therefore, the EB5 visa covers not only the spouse but also, in some cases, the spouse’s background, which can offer significant strategic benefits. Investors should discuss this with their immigration attorney early to maximize this opportunity.
What Happens If You Get Married After Getting a Green Card?
Timing is everything in the EB-5 process, especially regarding marriage. If an EB-5 investor marries after receiving their green card, the situation significantly differs from a marriage before or during the visa process.
Post-Green Card Marriage: A New Pathway
Once the principal investor receives their green card, their status changes from “visa applicant” to “permanent resident.” As a result, their spouse can no longer be added as a derivative beneficiary of the EB-5 petition. Instead, the investor must file a Form I-130 (Petition for Alien Relative) under the family-based immigration category.
Implications to Consider:
- Longer Processing Times: Family-based petitions for spouses of green card holders fall into the F2A category. While this is a high-priority category, visa backlogs in certain countries like India, Mexico, and the Philippines can cause significant delays, sometimes spanning multiple years.
- No Immediate Eligibility: Unlike derivative spouses under EB-5, the newly married spouse must wait for an immigrant visa number to become available. They are not automatically entitled to a green card.
So, does the EB5 visa cover a spouse if the marriage occurs after green card issuance? No. In this case, alternative options must be pursued, like family sponsorship or waiting for naturalization (so the green card holder can sponsor as a U.S. citizen). Timing your marriage around the EB-5 process can have significant immigration consequences.
To effectively navigate these unique circumstances, consider seeking legal advice from specialists at The Law Offices of Sweta Khandelwal.
Do Derivative Family Members Get the Same Rights?
A common question among EB-5 families is whether derivative beneficiaries—typically spouses and children—enjoy the same rights and privileges as the primary investor once their green cards are issued. The answer is definitely yes.
Equal Rights as Permanent Residents
Once the EB-5 process is completed and green cards are granted, derivative family members are considered lawful permanent residents of the United States, just like the principal investor.
Rights and Privileges Include:
- Freedom to live and work anywhere in the U.S. without employer sponsorship or restrictions.
- Access to public education, including primary schools, high schools, and in-state tuition at public universities.
- Depending on state laws and eligibility for healthcare programs, insurance, and other public services.
- Travel rights, including re-entry to the U.S. with a valid green card.
- Pathway to U.S. citizenship after 5 years of permanent residency, assuming all criteria are met.
This clearly shows that the question “Does the EB5 visa cover spouse?” goes beyond mere entry rights. Once granted permanent resident status, the spouse fully integrates into American society—legally, economically, and socially.
Can You Remove Conditions Together?
One unique aspect of the EB-5 visa is that it grants a conditional green card valid for two years. This applies not only to the investor but also to all derivative family members. Conditions must be removed through a specific process to maintain permanent residency.
Removing Conditions: The I-829 Process
To remove conditions, the primary investor must file Form I-829 (Petition by Investor to Remove Conditions on Permanent Resident Status) within 90 days before the conditional green card expires. This filing includes all derivative family members, such as spouses and children.
Important Considerations:
- Joint Filing Required: All derivative family members must be listed and included in the I-829 filing. If the spouse is omitted, they risk losing permanent resident status, even if they received the original green card.
- Evidence of Investment Success: USCIS requires proof that the investment met the EB-5 requirements—job creation, at-risk capital, and business development.
- Timely Filing Is Crucial: Missing the 90-day filing window can lead to deportation proceedings and loss of status.
Therefore, does the EB5 visa cover a spouse’s entire immigration journey, including conditional removal? Yes, but only if the couple actively follows through with each step. Neglecting this crucial phase could result in serious immigration consequences for the spouse.
What If the Marriage Ends?
While marriage brings your spouse into the EB-5 process, divorce can complicate or even jeopardize their eligibility depending on when it occurs. USCIS carefully evaluates the timeline and legality of marriages involving EB-5 applicants to prevent immigration fraud.
Key Scenarios to Understand:
- Divorce Before Green Card Approval:
If a couple divorces before the green card is issued, the spouse immediately loses eligibility as a derivative beneficiary. In this case, the EB-5 visa does not cover the spouse, and they must seek separate immigration options.
- Divorce After Green Card Approval:
Suppose the divorce happens after the green card has been issued. In that case, the spouse may still retain their permanent resident status, provided the marriage was legally valid and not entered into for immigration purposes. USCIS may still review the relationship’s legitimacy, especially if the divorce happens soon after approval.
Citizenship and Naturalization Implications:
When applying for U.S. citizenship, USCIS can scrutinize the marital timeline and history to determine whether the original green card was obtained through a bona fide marriage. Suspicious cases can lead to the denial of citizenship or even the revocation of the green card.
So, does the EB5 visa cover the spouse permanently? Only if the marriage was genuine and intact during the critical EB-5 processing phases. Legal separation or divorce before these phases are completed can derail the spouse’s immigration journey entirely.
To safeguard your family’s immigration status, it may be wise to consult with The Law Offices of Sweta Khandelwal to understand your options.
Conclusion
Does the EB5 visa cover spouse and children? Yes, but only if legal and procedural requirements are followed precisely. Proper planning, documentation, and legal advice ensure your family can benefit from the EB-5 journey.
The EB-5 program offers more than just residency; it provides a future for your family in the United States. To maximize the advantages, include your spouse and children strategically and lawfully.
Do you need professional guidance on including your family in your EB-5 journey?
Consult The Law Offices of Sweta Khandelwal—a leading immigration law firm based in the Bay Area, California. With offices in San Jose and Palo Alto, led by Sweta Khandelwal, an award-winning immigration attorney with over 18 years of experience, the firm provides expert legal services in business immigration, family immigration, visas, green cards, and U.S. citizenship.
Secure your family’s future with expert legal advice. Contact The Law Offices of Sweta Khandelwal today for a personalized consultation and take the next confident step in your EB-5 journey.
Disclaimer
Please note that the prices listed for visa services are estimates and may vary in real-time. We recommend consulting the official government websites or other authoritative resources for the most up-to-date pricing information. These estimates do not constitute a guarantee of costs, and fees may change without notice.
