For direct qualifying-employee counting, the investor’s spouse and sons or daughters are excluded. Do not confuse a business expansion headcount calculation with the separate qualifying-job analysis.
Keep employee and derivative rules distinct
A qualifying spouse and unmarried children under 21 may seek derivative status subject to individual requirements and applicable age rules. The age qualifier for derivatives does not limit the separate job exclusion for the investor’s sons or daughters.
Derivative eligibility is limited to unmarried children under twenty-one, so a birthday during a long process can remove a child from the case. An eligible derivative is different from a second principal investor. A school year or family moving plan does not supply the legal age calculation. Track each child’s age and obtain case-specific Child Status Protection Act analysis rather than assuming project selection freezes age. Because EB-5 processes are long, the age calculation for any child close to the limit needs specific early advice. Ask counsel to run the calculation with the real birth dates and to advise whether filing sooner protects anyone. Derivatives who immigrate with the investor receive the same conditional residence and are included in the later removal of conditions.