EB-5 for international families

The person who makes the investment is the principal investor. Certain close family members may obtain permanent residence based on the investor's petition. They are called derivatives because their eligibility derives from the principal's case, and they do not need to invest separately.

The investment requirements are the same however many derivatives are included: currently $1,050,000, or $800,000 in a targeted employment area or infrastructure project, for petitions filed before January 1, 2027, with 10 full-time jobs per investor. See EB-5 requirements.

Because the EB-5 process can take several years, a child who is under 21 when the investment is made may turn 21 before receiving a green card. This is often called aging out. The Child Status Protection Act and the EB-5 Reform and Integrity Act of 2022 contain age-related protections that may help in some cases, but how they apply depends on specific dates and steps in each case.

Families with children in their mid-to-late teens sometimes consider whether an older child should invest separately as their own principal investor, or whether the timing of filings and project selection could make a difference. These are legal strategy questions for an attorney. See planning for children and age and EB-5 for students.

When the investor petition is approved and the family obtains status, they first receive conditional permanent residence, valid for 2 years. The investor must file Form I-829 in the 90 days before the second anniversary of conditional residence to ask USCIS to remove the conditions. Derivatives are generally included in that filing or file alongside it.

Permanent residence is intended for people who make the United States their home. A permanent resident who lives abroad for long periods may be found to have abandoned their residence, which can put status at risk. Short trips are common, but extended absences, maintaining a primary home abroad, or not filing U.S. tax returns as a resident can all be relevant. Families planning to split time between countries should discuss this with an attorney in advance, including whether a reentry permit or other planning may be appropriate.

• Timing the move. Some families relocate together; others move in stages, for example around school years. Each approach has residence implications.
• Schooling. Public school enrolment is generally based on where the family lives. University tuition and financial-aid rules vary by state and institution.
• Work. Permanent residents are generally authorized to work in the United States.
• Keeping records. Travel history, addresses and tax filings may be relevant later, including when removing conditions.

Families often hope to bring grandparents or the investor's parents as well. Parents of the investor are not derivatives. They cannot be included in the investor's EB-5 petition, whatever their age or dependence on the family.

A parent could become a principal investor in their own right, with their own qualifying investment and their own spouse and eligible children as derivatives. In some families, the roles are reversed: a parent invests and the adult child's eligibility is the question. Other family-based routes may also exist; for example, a U.S. citizen aged 21 or older may generally petition for a parent, but that depends on citizenship, which is a separate process with its own requirements.

Who should be the investor, and in what order family members might pursue status, is a legal planning question. A qualified U.S. immigration attorney can map out the options.

Becoming a U.S. permanent resident can change how a person is treated for U.S. tax purposes, and it may also affect tax obligations in the family's home country. The consequences can be significant and can depend on income, assets, business interests and timing.

In general terms, a green card holder is usually treated as a U.S. tax resident, which can mean reporting worldwide income and disclosing certain foreign accounts and assets. Our article on U.S. tax obligations for EB-5 investors outlines the main themes to raise with an adviser.

1. 01

   Step 1: List every family member and their dates

   Note each person's date of birth, marital status, country of birth and current immigration status.

2. 02

   Step 2: Decide who would be the principal investor

   Discuss with an immigration attorney how that choice affects each family member, including children near 21 and parents.

3. 03

   Step 3: Map the source of funds

   Identify where the investment capital will come from and what documents prove its lawful source, including any gifts. See source of funds.

4. 04

   Step 4: Check visa availability

   Understand how the family's country of chargeability and the project's category may affect timing. See the Visa Bulletin.

5. 05

   Step 5: Evaluate the investment

   Review any project with a licensed securities professional. See project due diligence questions.

6. 06

   Step 6: Plan relocation and residence

   Consider schooling, work and how much time each family member will spend in the United States.

7. 07

   Step 7: Review tax implications

   Consult a qualified tax adviser about U.S. and home-country consequences before acting.

• How the EB-5 program works and the EB-5 process.
• Planning for children and age.
• U.S. tax obligations for EB-5 investors.
• Gift and loan funds.
• Understanding EB-5 investment risk.

Every family's circumstances are different. A qualified U.S. immigration attorney, a licensed securities professional and a qualified tax adviser can each address part of the picture. You can request a consultation to be connected with appropriate professionals.