The investor’s spouse, sons and daughters are excluded from the qualifying EB-5 job count, as is the investor. Their ability to work and their derivative immigration eligibility must be assessed separately from the required employment creation.
Avoid a family-dependent staffing count
Show qualifying positions without relying on the investing household. Once family members become permanent residents, they generally have resident employment rights, but that does not change the EB-5 counting exclusion. Before that stage, a pending petition alone provides no work authorization.
Review any planned family role with counsel alongside the business’s independent staffing requirements. Settle the staffing plan without the household in it, then consider the family own position separately. Reversing that order produces a plan needing rebuilt, because the investor and the investor spouse, sons and daughters are excluded from the qualifying job count.
Hypothetical example: a family proposes that an adult child manage the facility shipping desk while the parent invests. The role may be entirely appropriate commercially, but it cannot form part of the ten, and a plan quietly relying on it will be short when tested. Show the qualifying positions first, filled by workers outside the investing household.
Then address the family immigration position, noting that derivative children must be unmarried and under 21 and that a pending petition confers no work authorization before status is obtained. Once family members become permanent residents they generally have resident employment rights, which still does not alter the counting exclusion.