What is the definition of “child” as dependent in EB-5?

For permanent residency purposes, a child is anyone younger than 21 years old, unless he or she is married. To have derivative status to your immigration status your child must be your natural born child or your legally adopted child. Your adopted child will use your European citizenship.

Your Chinese adopted baby can get a green card along with you, when she has lived with you for 2 full years. Being legal guardian of your nephew will not count as making him your child. There needs to be a legal adoption, if possible. Your Chinese child will not be delayed by the quota backlog from China, as she will come under your quota.

The definition of a "child" for immigration purposes include both natural and adopted children (adopted under the age of 16 years). In this circumstance, the adopted child is your child and her country of birth is irrelevant and will not have any impact on her immigration to the US under the EB-5 program. However, your nephew will not be considered your child unless you adopt and it must be done while he is under 16 years of age.

Your legally adopted minor child can be included as a derivative dependent beneficiary of your processing. She would not be subject to the China backlog (she can take advantage of her parents place of birth for this purpose). Unless you legally adopt your nephew, he cannot be included as a derivative dependent of your EB-5 processing.

The pertinent section of federal law has an involved definition of child which applies to this situation. In general, you will be able to proceed with an EB-5 case if both your nephew and your adopted daughter can qualify as a "child" as defined in the applicable law. You need a consultation appointment with an immigration attorney to give you legal advice about this situation and to discuss the important details with you.

Your EB-5 experienced Immigration attorney will be able to advise you. Your adopted children under these circumstances will be able to be derivative beneficiaries of your EB-5 petition. The birthplace of the EB-5 investors, if China, will be subject to the retrogression, not the spouse or children.

The adopted child is a dependent child but the nephew would need to be legally adopted before his 16th birthday to be included.

A child includes an adopted child, so therefore, your China-born daughter should be included as a dependent in your EB-5 case. Only the country of birth of the principal applicant (the investor) or his/her spouse is relevant for immigrant visa number purposes. The country of birth of your adopted daughter will not be a factor. Your nephew is not considered your "child" under U.S. immigration laws, but he may be able to receive a parole or other authorization for him to accompany you to the United States since you are his legal guardian. Ideally, if you could legally adopt your nephew prior to your receiving your conditional lawful permanent residence, he would be included as your child as well. Remember that the I-526 processing time is about two years, on average, so you have time to apply now and complete the adoption during the I-526 petition processing and before you receive your conditional green cards.

Legal guardianship is not sufficient and you will be required to adopt your nephew in order for you to be able to include him as your child in EB-5 petition under US immigration law. You should consult an immigration attorney experienced in adoption matters for guidance and an EB-5 immigration attorney for your I-526 petition. Your adopted daughter should not be affected by the Chinese nationals visa backlog as her visa chargeability should be to your home country in Europe.

You need to adopt your nephew in order for him to be included as your child/dependent on the EB-5 petition.

Children are those of birth or adoption. Thus, in your case, your nephew must be adopted formally to be able to be considered your child for the EB-5 process. Your adopted child who was born in China should be given derivative chargeability of your European born country chargeability and need not wait for the Chinese visa retrogression.

The definition you would be more interested in would be that of an adopted child. USCIS defines an adopted child as a "child adopted while under the age of sixteen years if the child has been in the legal custody of, and has resided with, the adopting parent or parents for at least two years." Now, to answer your questions: You should first legally adopt your nephew before filing any EB-5 petition, and make sure you consult with an immigration lawyer with experience in adoption cases so that he may better guide you on this process. The USCIS definition of a child can be found on "INA: ACT 101 - DEFINITIONS \ Act 101(b)". Your daughter should not be impacted, but just to be safe, you should naturalize her to your country of nationality, if possible. You should always consult with an experienced immigration lawyer before filing any EB-5 petition.