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How can an EB-5 conditional green card holder add a newborn currently overseas?

An EB-5 investor''s I-829 is pending and she just gave birth to a baby in China. She did not bring the newborn with her after she came back to the United States after the birth of the child. If she now wants to apply for a green card for the newborn, shall she file the I-130 or I-824? Can a conditional green card holder file a I-130 for the overseas newborn?

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    Answered on

    Normally speaking, if a child is born after you obtain Lawful Permanent Residency, whether it is on a conditional basis or otherwise, the child can still qualify as a conditional permanent resident if an application for admission to the United States is made within two years of the child''s birth and is with the mother the first time she returns to the United States. Since this is not the case, it is true that the mother as a conditional permanent resident can also file a family petition on Form I-130 on behalf of her child under the F-2A classification, but there is a cut-off under the Visa Bulletin of April 15, 2015 for Chinese nationals, meaning essentially there is an almost two-year backlog or wait to apply on that basis. However, under Section 203(d) of the Immigration and Nationality Act, the newborn baby who is not named in the pending petition on Form I-829 is still eligible to obtain derivative status corresponding to the EB-5 priority date of the mother by filing an application on Form I-824 so that the child can consular process through the American Consulate in Guangzhou. It is possible that the American Consulate in Guangzhou would be amenable to directly processing the derivative immigrant visa of the child without having to first file the application on Form I-824; thus saving a significant amount of time.

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    Answered on

    The newborn can ordinarily enter as an NA3 derivative, but that has to be on first entry. Maybe if the husband returns upon first entry. If you file an I-130, that can take years. You must hire competent counsel and process the child derivatively.

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