The investor and the investor’s spouse, sons and daughters do not count toward the required qualifying jobs. Family participation in the company must be separated from the employment evidence supporting the EB-5 threshold.
Plan staffing and immigration independently
A spouse may qualify for derivative residence, but that relationship does not make their position countable. Before residence, any U.S. work must have its own authorization; filing the petition is insufficient.
Build the business hiring plan around qualifying workers and review children’s derivative eligibility separately. Do not design a job chart that depends on counting the investing household. Plan the staffing and the family's immigration separately, because the requirement concerns qualifying employees and certain individuals may be excluded from counting for that purpose.
Do not build a workforce plan that depends on family members filling positions the petition relies on. Where a family member does work in the business, document their role and terms properly and take advice on whether that position counts. Derivative eligibility flows from the relationship to the principal rather than from any contribution to the business.
Watch children's ages over what may be a long process, since a standalone case can run for years; a child approaching 21 should be raised with counsel early, as statutory provisions addressing age calculation exist in some circumstances and their application depends on the facts.