EB-5 for students and their parents

Under the EB-5 program, the person who makes the investment and files the petition is called the principal investor. The investor's spouse and unmarried children under 21 may obtain permanent residence alongside the investor as derivatives (family members whose status derives from the principal's petition). For a student, this creates two broad possibilities.

Student as principal investor

An adult student files the petition in their own name. Because most students have not accumulated the required capital themselves, the funds often come from parents or relatives as a gift. Gifts can be a lawful source of investment capital when properly documented, which generally means showing both the transfer and the lawful origin of the donor's money. See source of funds and gift and loan funds.

Student as derivative child

A parent files as the principal investor and the student is included as an unmarried child under 21. In this case, the student's eligibility depends on the parent's petition and on the student's age and marital status at the relevant points in the process.

Either way, the investment itself must meet the same requirements: a minimum of $1,050,000, or $800,000 in a targeted employment area or infrastructure project, for petitions filed on or after March 15, 2022 and before January 1, 2027; the capital must be at risk; and the investment must create 10 full-time jobs. These amounts are scheduled to be adjusted for inflation for petitions filed on or after January 1, 2027; at the time of writing, the adjusted amounts had not been officially published. See EB-5 requirements and the 2027 investment adjustment.

Which route makes sense can depend on the student's age, how long the process may take, whose funds are being used, and the family's wider goals. One family member being the investor rather than another can lead to quite different outcomes for the rest of the family, so this choice is usually worth discussing with an attorney early.

A child generally must be unmarried and under 21 to qualify as a derivative. Because the EB-5 process can take years, from filing the investor petition to receiving a green card, families with children in their late teens often ask what happens if a child turns 21 before the process is complete. This situation is commonly called aging out.

Two sources of law contain age-related protections that may help in some cases. The Child Status Protection Act (CSPA) provides a method that can, in some circumstances, treat a child as younger than their actual age for immigration purposes. The EB-5 Reform and Integrity Act of 2022 also contains provisions addressing children of investors. How either applies depends on specific dates, filings and actions in each case, so this page does not attempt to describe how they would work for any individual.

Marriage also matters. A derivative child must generally remain unmarried to keep derivative eligibility, so plans involving marriage are worth raising with an attorney.

Many students are in the United States in F-1 status, a nonimmigrant (temporary) status for academic study. F-1 status generally requires the student to intend to return abroad after studies. Seeking permanent residence expresses a different, immigrant intent, so the two can interact in ways that need careful planning.

The 2022 Act introduced concurrent filing for EB-5. A person physically present in the United States may file Form I-485 (application to adjust status to permanent resident) together with, or while, the investor petition (Form I-526 or I-526E) is pending, if an immigrant visa is immediately available as shown in the USCIS chart for that month and they meet the other adjustment requirements. While the I-485 is pending, the applicant may apply for work and travel authorization. See concurrent filing.

• Whether a student can file concurrently depends on visa availability for their country of chargeability in a given month, which can change. See reading the Visa Bulletin.
• Eligibility to adjust status generally depends on having maintained lawful status. Gaps or violations can matter.
• Filing for permanent residence may affect the ability to renew, extend or travel in F-1 status. These effects should be understood before any filing or international trip.
• Students outside the United States, or those who are not eligible to adjust, would generally complete the process through an immigrant visa at a U.S. consulate (Form DS-260) instead.

Families sometimes consider permanent residence partly for its possible effects on education. These effects are real in some cases, but they vary widely and are not automatic.

Because these rules belong to states, schools and funding bodies rather than to the EB-5 program, families should confirm current requirements directly with the relevant admissions, residency or financial-aid office.

The following questions are a starting point for a consultation. They are not a substitute for advice, and an attorney may raise others based on the family's circumstances.

1. Should the parent or the student be the principal investor, and how does that choice affect other family members?
2. If the student is a derivative, could they turn 21 before the process is complete, and what protections might or might not apply?
3. If the student is the investor using gifted funds, what documents will be needed to show the gift and the donor's lawful source of funds?
4. Can the student file concurrently, and how might that affect current F-1 status, practical training or travel?
5. Would consular processing abroad be more appropriate, and how would it fit around the academic calendar?
6. What happens to the student's plans if the investor petition is delayed or denied?
7. What obligations follow conditional residence, including filing Form I-829 to remove conditions?

Because EB-5 involves an investment, families should also consider the financial side separately. The investment carries risk of loss, and a licensed securities professional can help evaluate a specific offering. See understanding EB-5 investment risk.

If EB-5 may be relevant to your family, these pages explain the main topics in more depth:

• How the EB-5 program works and the step-by-step process.
• Planning for children and age.
• Source of funds and gift and loan funds.
• Concurrent filing and reading the Visa Bulletin.
• EB-5 for families for wider household planning.

Eligibility always requires individual assessment by a qualified U.S. immigration attorney. If you would like to be connected with appropriate professionals, you can request a consultation.