Principal and derivative beneficiaries play crucial roles in various legal contexts, including immigration processes such as the EB-5 Visa program. Understanding these roles is essential for those navigating complex processes like family-based or employment-based visa applications.
What does Principal and Derivative Beneficiary mean?
The “Principal Beneficiary” refers to an individual or entity designated to receive benefits as a priority in the event of the account or trust holder’s death, whether from a will, life insurance policy, retirement account, trust, or annuity. The principal beneficiary is a family member for whom an I-130 petition is filed.
A “derivative beneficiary” refers to an intended immigrant who cannot be directly petitioned but is eligible for immigration benefits through the original applicant. Typically, the spouse and unmarried children (under the age of 21) of the principal beneficiary qualify as derivative beneficiaries.
What is the Difference between Principal and Derivative beneficiary for EB-5 Visa?
The principal beneficiary in the EB-5 Immigrant Investor program is the primary or principal immigrant for whom a petition is filed, typically an EB-5 investor. Derivative beneficiaries in the EB-5 program are unmarried children under the age of 21 or the investor’s spouse if available. The key distinction lies in the primary immigrant, or principal beneficiary, for whom the petition is initially submitted, and the derivative beneficiaries, who are family members relying on the principal applicant’s immigration rights.
Who qualifies as a Derivative Beneficiary of an EB-5 investor?
A derivative beneficiary of an EB-5 investor is an alien who, based on a spousal or parent-child relationship with the principal beneficiary (the EB-5 investor), cannot be directly petitioned for but can follow-to-join or accompany the principal beneficiary in the EB-5 investment process
Can an expected child be included as an EB-5 Derivative Beneficiary?
No, an expected child cannot be included as an EB-5 Derivative Beneficiary, but once the unmarried daughter obtains permanent resident status, she can petition for the child.
How is the age of a derivative child determined in light of visa retrogression?
The age of a derivative child for EB-5 Visa eligibility is determined by subtracting the length of time the I-526 Petition was pending from the child’s age at the time the visa number becomes available. Visa retrogression does not affect this calculation, except for Mainland-born Chinese nationals.
What are the Advantages and Disadvantages of having a Derivative Beneficiary?
Having a derivative beneficiary in the immigration process brings both advantages and disadvantages. Understanding these aspects is crucial for individuals navigating family-based or employment-based visa applications.
Advantages of having a Derivative Beneficiary:
- Facilitates family immigration: Allows spouses and unmarried children to accompany or follow the principal beneficiary, promoting family unity.
- Streamlines immigration process: Simplifies the immigration process for derivative beneficiaries accompanying the principal beneficiary.
Disadvantages of having a Derivative Beneficiary:
- Age restrictions: Derivative beneficiaries are typically limited by age, requiring them to be unmarried and under 21, which may restrict eligibility for certain individuals.
- Limited relationship categories: Derivative beneficiaries are generally restricted to specific familial relationships, such as spouses and unmarried children, excluding other family members.
What is the difference between Derivatives and Immediate Relatives?
Immediate relatives are defined as the spouse of a U.S. citizen, the unmarried child under the age of 21 of a U.S. citizen, and the parent of a U.S. citizen (provided the citizen is at least 21 years old). On the other hand, derivative beneficiaries can only follow a principal beneficiary and encompass a principal beneficiary’s unmarried child under the age of 21 and spouse. This demarcation outlines the familial relationships that determine eligibility and accompanying privileges in the immigration process.
Can a derivative beneficiary residing in the US under nonimmigrant status file for adjustment of status even if the primary applicant went through consular processing?
No, a derivative beneficiary residing in the U.S. under nonimmigrant status cannot file for adjustment of status independently if the principal EB-5 investor underwent consular processing. Derivative beneficiaries derive their status from the principal applicant and do not have an independent basis to adjust status outside of their relationship to the principal immigrant, according to the Policy Manual of United States Citizenship and Immigration Services (USCIS). The EB-5 Concurrent Filing provision introduced by the EB-5 Reform and Integrity Act of 2022 applies only to principal EB-5 investors, not derivative beneficiaries.
Is it possible for a civil union partner of an EB-5 investor to apply for an EB-5 visa as a derivative beneficiary?
No, it is not possible for a civil union partner of an EB-5 investor to apply for an EB-5 visa as a derivative beneficiary. The EB-5 visa process allows only the immediate family, including the spouse and unmarried children under the age of 21, to be eligible as derivative beneficiaries.
What happens to the Derivative Beneficiary’s application if the Principal Applicant became deceased?
In the event that the principal EB-5 investor passes away before the I-526 petition approval, the derivative beneficiary’s application could still receive approval, provided the beneficiary was residing in the U.S. at the principal applicant’s death and continues residing in the U.S. until the decision on the pending petition or application is made. Specific instructions within Form I-829 guide conditional permanent resident spouses or children of a deceased EB-5 investor on demonstrating compliance with requirements, including sustaining the capital investment and meeting job creation criteria. Should the unfortunate circumstance of the principal applicant’s death occur within the two-year conditional permanent residence period, the spouse and children can maintain eligibility for condition removal through the submission of Form I-829.
When can a dependent child get married during the ongoing EB-5 process, and would their spouse be eligible as a derivative?
During the ongoing EB-5 process, a dependent child can get married after obtaining conditional permanent resident status. However, if the dependent child marries before obtaining this status, they will no longer be considered an eligible dependent. Once the child has acquired a Green Card, they are free to marry, but their spouse will not be eligible as a derivative beneficiary of the principal EB-5 investor. Instead, the spouse would need to pursue a different visa category, such as F2A, to immigrate to the United States.
After the I-526 Petition is authorized, what is the immigration status of an EB-5 investor and their derivatives?
After the I-526 Petition is authorized, it does not, by itself, confer any immigration status to the EB-5 investor or their derivatives. Following the approval of the I-526 Petition, the petitioner must take additional steps based on their location. If already in the U.S., the petitioner must file Form I-485 to adjust status. If living abroad, they must file Form DS-260 to undergo consular processing. Once the EB-5 investor and any derivatives successfully complete the adjustment of status or consular processing, they will be granted conditional permanent resident status.
Is it required for each of the EB-5 investor’s derivatives to fill out Form DS-260?
Yes, the completion of the online Form DS-260, payment of the associated fee, and submission of all necessary documents are required for each of the EB-5 investor’s derivatives, including the principal applicant.
When should an EB-5 investor’s derivative beneficiaries file Form I-485?
Derivative beneficiaries of an EB-5 investor should ideally file their Form I-485 applications concurrently with the principal applicant. However, if a derivative chooses not to file simultaneously, they have the option to submit Form I-485 within six months after the principal applicant is granted permanent resident status. After this six-month period, the derivative must pursue following-to-join benefits and file Form I-824, Application for Action on an Approved Application.
When is it possible for the EB-5 investor’s derivative beneficiaries to apply for Green Cards?
The EB-5 investor’s derivative beneficiaries can typically apply for Green Cards at the same time as the principal applicant, and this application process occurs after the approval of the I-526 Petition.
How would the principal EB-5 applicant and other derivatives be affected if a derivative beneficiary gives up their conditional permanent residence?
The principal EB-5 applicant and other derivatives would not be affected if a derivative beneficiary gives up their conditional permanent residence. The derivative can file Form I-407, Abandonment of Lawful Permanent Resident Status, to be removed from the pending I-829 Petition, and this action will have no impact on the principal EB-5 applicant or other derivatives.
Will a derivative child be eligible for the permanent Green Card if they turn 21 before Form I-829 is approved?
Yes, a derivative child will still be eligible for the permanent Green Card even if they turn 21 before Form I-829 is approved. Age is no longer a determining factor for eligibility once a derivative child receives a conditional Green Card. The conditions on the Green Card will be removed upon the approval of the I-829 Petition, allowing the derivative child to maintain their eligibility for permanent residency.
Is it possible for a married couple to file two separate I-526 Petitions and list each other as derivatives?
Yes, it is possible for a married couple to file two separate I-526 Petitions and list each other as derivatives. However, it’s important to note that only one petition can serve as the basis for the EB-5 Visa application. While this approach may improve the chances of I-526 Petition approval, it does not increase the likelihood of I-829 Petition approval. Having two EB-5 applications is not a substitute for competent immigration counsel and careful due diligence.
How can a parent who shares custody list their child on an EB-5 application as a derivative beneficiary?
To list a child on an EB-5 application as a derivative beneficiary when the parent shares custody, the EB-5 investor will likely need to obtain consent from the other parent. The process would involve securing legal permission or agreement from the non-applying parent to include the child in the EB-5 application.
How can dependents living abroad apply for an EB-5 Visa if the principal I-526 applicant is in the US under a different visa and intends to change their status via Form I-485?
To apply for an EB-5 Visa, dependents living abroad can file for following-to-join benefits after the principal I-526 applicant has adjusted their status in the U.S. It might be quicker for the principal applicant to return home and process the visa at the consulate simultaneously with their family. However, as each case is unique, it is advisable to consult immigration counsel to determine the most suitable course of action.
When is the principal applicant able to include their spouse in the EB-5 application?
The principal applicant is generally able to include their spouse in the EB-5 application after the Form I-526 is approved. The spouse can apply for an EB-5 Visa at the same time as the principal applicant, following the approval of Form I-526, and the subsequent filing of either a DS-260 immigrant visa application (if living abroad) or an I-485 application to adjust status (if living in the U.S.).
Can the principal applicant abandon their Green Card without impacting the Green Cards of the derivatives?
No, if the principal EB-5 investor abandons their conditional Green Card before Form I-829 is approved, it will impact the Green Cards of all derivative beneficiaries. Once lawful permanent resident status is granted, each person’s status becomes independent. However, if the principal applicant abandons their conditional Green Card, all derivative beneficiaries will be unable to remove conditions and obtain permanent Green Cards.
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