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When is the age of a child relevant in the EB-5 process?

My daughter will turn 21 years old in December. My goal is to apply for EB-5 by July. Will my daughter still qualify to receive her green card if I apply for the EB-5 visa before her 21st birthday? In other words, when is the age of my child relevant in the EB-5 process? Does her age count on the date that I file the I-526, or not until we receive the conditional green card? Is my daughter in danger of aging out?

Answers

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    Robert Lee

    Immigration Attorney
    Answered on

    You will be OK as long as you submit the I-526 before she turns 21. She will not age out during the processing.

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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, she will still be able to obtain conditional permanent residency even if the child turns 21 before the investor and family obtain the conditional permanent residency. However, because of Chinese retrogression, the Chinese investor may not be able to protect the child who is about to turn 21. For the Chinese investor it is better to file the petition when the child is about to turn 17, 18 years old.

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    John J Downey

    Immigration Attorney
    Answered on

    There is a danger of aging out. There is an argument that under the Child Protection Act, if the application is accepted while the child is still under 21, she could be protected. However when will the application be accepted? Not necessarily when you file.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    As long as you OR your wife are not born in China, then your daughter is probably not in danger of aging out. The Child Status Protection Act (CSPA) provisions likely will keep her as your dependent because her age on the date a visa number is available (priority date current) will be under 21 since the priority date will be current when you file the petition. If you and your wife are both born in China, then you should consider gifting the EB-5 capital to your daughter if it is more important to you that she obtains a green card. Dependents 18 years old and older of China-born EB-5 investors are in danger of aging out.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If you file the I-526 before your daughter turns 21, there are protections in place to allow her to continue the process of applying for the EB-5 visa (first conditional permanent residency, then full lawful permanent residency), as a derivative beneficiary. If you are subject to a delay in visa availability (that is, you are from mainland China), your daughter may not be protected for as long as it takes for a visa to be available.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Yes, your daughter may be in danger of aging out. The Child Status Protection Act (CSPA) was passed several years ago and has been applied to EB-5 petitions. In essence, if a visa is currently available to you when filing an I-526 petition, your daughter's CSPA age will remain her chronological age at the date of filing, regardless of the time it takes the USCIS to process your petition for an immigrant visa (I-526). If a visa is not immediately available when you file the I-526, your daughter will continue to age until a visa becomes available and you can file with the U.S. Embassy to take the visa. If you are Chinese, there is no visa currently available and those Chinese who are currently receiving visas filed the I-526 in 2013. If you are not Chinese, as of June 2015, visas are currently available. You need to watch the monthly bulletin for July to confirm a visa is currently available for you. The U.S. Department of State publishes the July bulletin on June 10, 2015. Check the U.S. Department of State website for the monthly bulletins.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If you file for the second stage promptly after the I-526 is approved, she will be protected under CSPA. And not age out.

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    Roberto Ortiz

    Immigration Attorney
    Answered on

    The age where a child ages out for purposes of immigration is 21. By you applying before she turns 21, you will freeze her age pursuant to the Child Status Protection Act. I would apply as soon as you can.

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