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What does the "Date for Filing" mean for Chinese EB-5 investors?

I am Chinese national with an approved EB-5 petition. My priority date is not current yet, but I am eligible under the "Date for Filing" on the Visa Bulletin. I am in the United States under an L-1 visa. Can I apply for adjustment of status? Will my children's ages be frozen when I apply for the adjustment? What if I was in China? When is the age of the child's eligibility determined? When the priority date is current?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    An experienced EB-5 immigration attorney will be able to advise you. Chinese retrogression has caused substantial uncertainty for Chinese children as to whether they will be able to file for adjustment in the United States.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Since Nov. of 2015, the "Dates for Filing" have meant nothing for Chinese EB-5 applicants who wish to adjust status in the United States. Every month since then, USCIS has announced that the "Final Action Dates" must be used for adjustment of status purposes. Your priority date will be current based upon the Visa Bulletin's Final Action Date, which means you will be able to take the age of your child on that date (when an immigrant visa number is available) and then subtract the amount of time your I-526 petition was pending (filing date until approval date). The resulting age, if under 21, will be frozen when you file the adjustment of status applications or otherwise seek to acquire permanent residence (by paying the immigrant visa fee bill and submitting the DS-260 forms). This issue is not affected significantly if you are in China or in the United States.

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    Peter Zhang

    Immigration Attorney
    Answered on

    Yes you may. This will indeed freeze your child's age to prevent aging out. If you are in China, then you will not be able to submit the adjustment of status application. The age of the child's eligibility is determined based on the date that your I-526 was received.

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    Charles Foster

    Immigration Attorney
    Answered on

    If you are in the United States and your priority date as reflected in the Visa Bulletin for June 2016 is current, you may file an Application for Adjustment of Status. For Chinese nationals, the date of filing of your petition would have had to be before Feb. 15, 2014. If that is the case and if you and your immediate family, being your spouse and your unmarried children under the age of 21, file your Application for Adjustment of Status, your child's age will be frozen after you apply for adjustment of status and you are waiting for a final determination by USCIS. If you were in China, your child's eligibility date would be his or her birthdate minus the length of time it took the petition to be approved.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If in China, FAD controls. If in the United States, DFF may control. USCIS allowed adjustment filings off DFF last October and November. Not sure if they will this October when the new fiscal year starts. We will know about Sept. 20, 2016. Let's hope.

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    Raymond Lahoud

    Immigration Attorney
    Answered on

    The Visa Bulletin will now have two different charts because of recent revisions in visa availability. Each month, the Department of State posts two charts per visa preference category in the Department of State Visa Bulletin. The charts are: (1) Application Final Action Dates (dates when visas may finally be issued); and (2) Dates for Filing Applications (earliest dates when applicants may be able to apply). When United States Citizenship & Immigration Services determines there are immigrant visas available for the filing of additional adjustment of status applications, the Dates for Filing Applications chart may be used to determine when to file an adjustment of status application with United States Citizenship & Immigration Services. Otherwise, the Application Final Action Dates chart must be used to determine when to file an adjustment of status application with United States Citizenship & Immigration Services. The priority date is current when it appears as a "C" on the relevant chart being used that respective month. You would be able to apply for adjustment of status if it is current and your children can apply as derivatives, assuming all are in lawful status in the United States.

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