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What does it mean if no EB-5 visa number is available?

I am Chinese. My I-526 petition was approved on Sept. 2, 2015 and the priority date was May 14, 2014. All of the family members except my eldest daughter were issued payment bills, and all of the family members submitted their own DS-260 forms except for her. Our attorney told me the government refused to issue a fee bill to her because no visa number was available. What does that mean? Her DOB is March 24, 1994 - if she ages out, how can she immigrate to the United States?

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    Ed Beshara

    Immigration Attorney
    Answered on

    The Chinese EB-5 investors and their children who have turned 21 years after the filing of the I-526 petitions have special issues regarding the priority dates being current before the applications for conditional permanent residency can be filed.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The Child Status Protection Act (CSPA) determines a child's age for the purposes of being included as a dependent in an immigrant case. The formula is fairly simple: you take the child's age on the date a visa number becomes available (i.e., the date the priority date becomes current according to the Visa Bulletin) and then you subtract the amount of time the petition was pending (filing date to approval date). Only if the resulting age is under 21 can the otherwise "aged-out" child be considered a dependent in the immigrant case. When you filed your I-526 petition, your daughter was 20. The petition was pending from May 14, 2014 until Sept. 2, 2015, a total of 476 days. You daughter's current age is 22 years, 119 days. Therefore, even if the priority date became current today, your daughter could not be considered a child/dependent for your case because you can subtract from her current age only the amount of time the petition was pending (476 days). 22 years and 119 days minus 476 days results in a CSPA age of 21 years and 11 days, so she is already over 21 even under the CSPA calculation.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    There are a lot of factors involved with age-outs and remedies, which require the assistance of an experienced EB-5 attorney, but it may still be possible to get the fee bill issued depending on the right combination of circumstances.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Your question concerns two separate immigrant principles. Availability of a visa is separate and distinct from a child's having aged out of eligibility. See below. Availability: The U.S. Department of State (DOS) issues a number of immigrant visas each year. When all of the immigrant visas have been issued for the year in any particular category, there are no more available in that category for those persons who are otherwise eligible to receive one. Separately, when your daughter turned 21 years old she aged out and an approved I-526 petition does not create an immigrant visa for a son or daughter 21 years of age or older. When you filed the I-526 on May 14, 2014, there was an immigrant visa immediately available to you. You, your spouse and unmarried children under 21 years of age on that date obtained May 14, 2014 as priority dates. On that date your daughter, born March 24, 2014, was 20 years and 2 months of age. On May 1, 2014, no more visas were available for mainland China investors with a priority date of May 1, 2013 or later. When the availability of immigrant visas moved backwards from your priority date to May 1, 2013, the movement is known as a retrogression. When your I-526 was approved, you got into line according to your priority date to await availability of a visa. Age-out: By the time your I-526 was approved on Sept. 2, 2015, the EB-5 availability for China had already retrogressed and your daughter was 21 years, 5 months and 7 days of age. Visas were then available for those with priority dates of Sept. 22, 2013 or earlier. Your daughter was not issued a fee bill because she was over 21 years chronologically (no longer statutorily a child) when your petition was approved. As of August 2016, the current priority date is Feb. 15, 2014. Even using the Child Status Protection Act (CSPA) formula, your daughter's CSPA age would be 21 years or older. However, the Child Status Protection Act (CSPA) also provides a mechanism by which a child, who becomes a daughter while the petitioner is waiting in line for a current priority date, retains the priority date of the original petition in certain subsequent petitions by the same petitioner. Question: If you were to enter the United States as a permanent resident and immediately file a petition in the 203(a)(2)(B) category to provide an immigrant visa for your daughter, would she retain the May 14, 2014 priority date from your I-526 petition? The question has been litigated through the U.S. Supreme Court, but not as applied to an EB-5 child who ages out. It would be an interesting question because you are the petitioner who filed the I-526 for the benefit of your daughter and you are the petitioner filing the I-130 for the benefit of your daughter. The beneficiary and petitioner have the same relationship in both the EB-5 and in the (a)(2)(B) immigrant categories. It becomes simply putting a new category heading on the facts about the petitioner and beneficiary. You may consider other possible options to enable your daughter to immigrate to the United States.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    No visa number was available simply means that for the specific category your daughter belongs to a visa is not available for her. Judging by your description, your daughter is apparently over 21 years of age at the time in question. Apparently, she is a child of a permanent resident and is above 21 years of age. There are a couple of steps that can be taken to explain and address this issue for you; advisably, you should consult an attorney for further steps to address this matter.

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    John J Downey

    Immigration Attorney
    Answered on

    I am not sure why the eldest daughter was rejected while the others were not. She may seek relief under the Child Status Protection Act (CSPA); ask your counsel to advise you regarding that.

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    Charles Foster

    Immigration Attorney
    Answered on

    When someone says there are no EB-5 visa numbers available, it simply means that when Congress created the EB-5 law in 1990, and subsequently amended in 1992, they set an annual quota of 10,000 visa numbers, which would include immediate family members of the EB-5 investor petitioner. Think of the quota as a theater; there are so many seats in the theater and once the theater fills up, a line forms outside because there are no tickets available. Thus, when there are no visa numbers available, it means that there are more people applying than there are numbers available. Congress set an annual quota of 10,000, which includes family members, and each year there are more people filing EB-5 petitions than there are numbers available. Since your I-526 petition was filed, presumably on May 14, 2014, you have to wait until a visa number is available under the quota, which should be in the relatively near future. I am not certain why your attorney told you what he did as it would seem to me to be an administrative error. If there were numbers available for you, there would be numbers available for your older daughter unless she has "aged out." A child who is over the age of 21 would have aged out. As your daughter was born in 1994, it is possible she aged out. However, she would have been protected by the Child Status Protection Act, which means the amount of time that the petition was pending before it was approved would be subtracted from her age. I have not done the math, but it would seem to me that her problem is not that visa numbers are not available, but rather that she aged out. You should discuss this with your attorney.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It means you can submit the first stage of the EB-5 filing - the I-526, which establishes your priority date. When the first stage is approved, if the priority date is not current (there is a quota and a bulletin is published each month indicating what priority date they are working on), then you cannot file the final step at the consulate or to adjust status to actually obtain the two year green card. So far only China is backlogged.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The current visa unavailability for the Chinese applicants and your daughter not receiving her fee bills with the rest of the family are different matters. If you and other members of the family were able to get the fee bills, then you and your family could proceed with submitting the DS-260, which means your eldest daughter also may be able to do so with the CSPA argument. The National Visa Center (NVC) would have issued the fee bills for everyone who could immigrate with you. Your daughter was already over 21 years old when the I-526 was approved, so they may have thought your daughter had aged out and excluded her from the fee bills. It is not clear when your fee bills were issued, but there is a good chance that your daughter's age could be less than 21 years if the I-526 pending time of 14+ months is deducted from when those fee bills were issued. Thus, your attorney should calculate the proper age with the pendency of I-526 and should email NVC arguing that your daughter was protected under the CSPA.

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