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What happens if the child of an investor turns 21 during EB-5 processing?

I will be the main EB-5 investor, and my wife and son will be on the application. However, our son will turn 21 years old before the end of the EB-5 process. He will be 20 years old when the temporary visa is issued, and so will then be over the age limit when it is time for the permanent green card. Would he still be eligible for a permanent U.S. green card? What happens if the child of an EB-5 investor turns 21 during the EB-5 process?

Answers

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    A child may be protected under the Child Status Protection Act (CSPA). You must file your I-526 before the child turns 21. The child must remain unmarried. There are certain important considerations that may be based on per country backlogs for immigrant visa availability and waiting periods, such as for mainland China nationals. Such backlogs could possibly affect a child who is over 21 at the time the I-526 is approved, and you should consult an experienced immigration attorney to advise you.

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    Ed Beshara

    Immigration Attorney
    Answered on

    As long as the I-526 petition is filed before the child turns 21 years old, the child who turns 21 during the I-526 adjudication process can still adjust to conditional permanent residency. Of course, this adjustment is based upon normal processing times, not the extra time delays associated with retrogression of visa numbers such as with Chinese Nationals.

  • Avatar

    John J Downey

    Immigration Attorney
    Answered on

    If he turns 20 during his conditional status then he is ok. Usually if your EB-5 application is accepted while the child is under 21, this will allow them to continue the process even if they turn 21.

  • Avatar

    Michael A Harris

    Immigration Attorney
    Answered on

    Your child may be fine and protected under the Child Status Protection Act (CSPA). If your child turns 21 years old before your I-526 is approved, then a competent immigration attorney would have to consider a couple of things. Most important will be what country or nationality the EB-5 processing will be based on. Currently, nationals of mainland China are experiencing per country backlogs that could potentially affect a child who was under 21 when the I-526 was filed, but over 21 when it was approved. Upon the approval of the I-526, the CSPA unfreezes the age of the child and the child will then have one year in which to seek permanent residence. To be successful, you should carefully consult with an attorney who understands the CSPA and its effect on the EB-5 process.

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If the I-526 petition is filed before the child turns 21, he will be protected. Please note that once you have the opportunity to apply for the green card (usually the issuing of the invoices by the National Visa Center), you have one year to pay those invoices and get the green card process moving.

  • Avatar

    Melanie Yang

    Immigration Attorney
    Answered on

    If your son gets his temporary immigrant visa while he is under 21, then he will never age out. At the I-829 removal of conditions on the permanent residency stage, USCIS no longer even cares about the child's age. He just needs to get the temporary immigrant visa based on your investment under age 21 or under the protection of CSPA even if he is little bit over 21 (minus the days while the I-140 was pending).

  • Avatar

    Lynne Feldman

    Immigration Attorney
    Answered on

    If he is under 21 when the I-526 is filed he should be ok under CSPA. Turning 21 after the I-526 approved is not a problem.

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    A child may be considered a dependent if he or she is under 21 at the time the green card is granted or if the Child Status Protection Act (CSPA) protects the child's dependent status even after age 21. There is a formula in CSPA that allows the dependent's age for CSPA purposes to be calculated as follows: Take the age of the child on the date an immigrant visa number first becomes available (i.e., the priority date becomes current), then subtract the amount of time the petition was pending (filing date to approval date). If the resulting age is under 21, then the child is "protected" and still considered a dependent as long as he or she seeks to acquire LPR status within one year. So, in your case, if he is still 20 years when the conditional green card is granted, he will remain your dependent even though he will turn 21 during the two-year conditional period. You do not even need to rely on the CSPA formula.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    It depends on when your child turns 21 during the process. If the child is already 21 when you file the I-526, then he cannot be included in your process. However, if he turns 21 after the I-526 is filed, then his age is frozen at 20 years old until the I-526 is in process. If the Priority Date (visa number) is available when the I-526 is approved and you can immediately file for either the I-485 adjustment or the DS-260 immigrant visa application, then your child is able to finish that process with you, although he is technically over 21 - because his age was frozen at the time of the I-526 filing at 20. If you already have the conditional green card and your child received that with you, then he is okay to remove conditions with you regardless of his age being over 21.

  • Avatar

    Gregory Romanovsky

    Immigration Attorney
    Answered on

    As long as your child is under 21 by the time he gets his initial green card, his age should not matter for purposes of the removal of conditions case.

  • Avatar

    Stephen Berman

    Immigration Attorney
    Answered on

    There is no problem to remove the condition from resident status if the child ages out.

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