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What can I do if I “age out” after the I-526 is filed even though I was under 21 years of age when we first filed our EB-5 petition?

My mother was born in mainland China. She filed our I-526 form in April 2015, which was 8 months away from my 21st birthday. Now our lawyer is telling us I might not able to wait till they approve the case since my age does not "freeze" after the I-526 get approved. Is there anything we could do to change this? Is there a way to transfer the case to my name now? I also have questions about filing an I-485 while in the United States. I have an F-1 visa and, in the past few years, USCIS has let the people file their I-485 according to the date for filing chartwhich is faster than the FDA chart. Do you have any suggestions for my situation?

Answers

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    Irina Lust

    Immigration Attorney
    Answered on

    Once your I-526 is approved, it is not possible to further freeze your age. However, you may want to file your own I-526 petition if this is a possibility.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Unfortunately, you cannot freeze your age further after I-526 petition is approved and, given the current backlog for Chinese nationals, it is possible you may age out based on the information you provided. You may not transfer the pending or approved I-526 petition in your name if your mother is the principal EB-5 investor. You will have to file your own I-526 petition based on a lawful source of funds or find other immigration options in your own right, such as applying for OPT and then possibly for H-1B or L-1B if you have a sponsoring employer or by possibly marrying a U.S. citizen. Another future immigration option is for your mother to file for you when she becomes a permanent resident under an F-2B category. However, this option will not be a fast route to immigration and you must be unmarried.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If you have your own funds, you can also file a separate I-526 Investor Petition as the principal applicant/the investor. Or, if your mother is not concerned about getting a green card for herself, she can withdraw her I-526 Petition and you can file as the investor with new I-526 Petition using her funds. However, that would also mean you would lose the Priority Date (of April 2015).

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Unfortunately, there is no way to freeze your age once the I-526 is approved if the visa number is not current. You need a current number to file an immigrant visa application and to interview or file the I-485. There is also no way to simply change the main investor without re-investing and refiling the petition in your name. With the current retrogression of the visa numbers, which is expected to be worse in the future, there is no way for you stay under the F-1 to be able to adjust to permanent residency without staying in school for 10+ years or perhaps being able to obtain H1B after graduation.

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    Charles Foster

    Immigration Attorney
    Answered on

    You have several problems. It is true that normally you lose eligibility as a dependent when you turn 21, but the time it takes to adjudicate the EB-5 Petition on Forum I-526 is, as you said, frozen (or does not count). Given the fact that it is taking more than 18 months to adjudicate a petition, that time will not count against your age. The real problem is that there may not be any visa numbers available for Chinese nationals and you could very well age out of the process for that reason. You could not automatically transfer the case to your name. You would have to refile and if so, you would not have an aging out issue. You could apply for Adjustment of Status on Form I-485 if you maintain your non-immigrant F-1 Student or other temporary, non-immigrant status. It is true that the State Department has allowed the filing of Applications for Adjustment of Status several months prior to the time a visa number is available, but that allows the filing only several months in advance. The Final Action Dates for all employment preferences versus the dates for which filing of the applications at earlier dates is normally separated by no more than 4 months.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you are subject to the mainland China quota, you must seek to acquire a green card by taking certain steps after the approval of the I-526, but such steps will only freeze your age if a visa number is available under Chart A: the Final Action Date. If you are Chinese, the waiting list is currently backlogged to June 15, 2014, and you will almost certainly age out. It is possible to withdraw and refile with you as the principal applicant but you will lose your place on the waiting line. Alternatively, after your parents immigrate, they can file for you if you are unmarried, but that means several more years of waiting.

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    Anthony Korda

    Immigration Attorney
    Answered on

    Although the Child Status Protection Act provides limited protection for the children of petitioner''s who may age out while the I-526 Petition is being processed, given the visa wait times for mainland China nationals, this protection may expire before a visa number becomes available for you. Unfortunately, there is little to be done, although some attorneys are advising clients to pay the visa fee and complete a visa application in the hope of safeguarding rights. As this is a complex area, you should discuss your case with an experienced EB-5 attorney. Unfortunately, you cannot transfer your mother''s case to you. To safeguard your position, you would have to file your own I-526 Petition and start the process again. You may be able to file for adjustment of status (I-485) depending on current visa dates, but this will only apply once the I-526 is approved and then only if your priority date permits.

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