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When would the child of an EB-5 investor file their own petition?

We are from Canada and my mother wants to apply for an EB-5 visa for herself, with me under her name as a child. However, I turn 21 in January 2017. Based on my age, we are wondering if it is better for me to apply as her dependent or to file my own application? Should we submit both at the same time and then remove me from her I-526 in case I age out?

Answers

  • Avatar

    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It may be safer to file your own petition. Please work with an immigration attorney for the very important step of immigration planning.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Filing two petitions concurrently is an expensive proposition. If your mother files her petition, she can include you with the goal of possibly utilizing the Children Status Protection Act (CSPA) if you do age out when her petition is pending. Advisably, consult an EB-5 attorney for further analysis of your options before you proceed on either a two-petition track or any other option.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You should be able to be included in your mother's I-526 petition if you file fast and your mother is not born in mainland China, because you will be protected under the Child Status Protection Act and your age will freeze while your mother's I-526 petition is pending if the petition is filed before you turn age 21 and assuming you are not married. Please contact an experienced EB-5 immigration attorney.

  • Avatar

    Marisa Casablanca

    Immigration Attorney
    Answered on

    Since you are turning 21 years old in January 2017, there is not enough time to prepare a sufficiently detailed case for your mother and include you. Most attorneys will suggest that you file on your own in order to have sufficient time to put together a well-documented case.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If your mother is not intending to immigrate to the United States (i.e., obtain a green card), it would be best to have you be the EB-5 investor since you are very close to aging out as a derivative beneficiary. Of course, if you and your mother both have the financial capability to file independently for the EB-5, and she also wishes to immigrate to the United States, then you do have the option to file the I-526 separately. You should consider other options for immigrating as well if there are financial limitations to this scenario.

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Unless your mother was born in China, this should not be an issue because your age will be locked in upon I-526 filing. All investors born in countries other than China have immigrant visa numbers available to them, so even if you turn 21, you will still be considered a dependent under the Child Status Protection Act (CSPA). If your mother was born in China, regardless of her current country of citizenship, then you should file separately because you will not be included in her case due to China visa number cut-off date (visa quota) issues. In other words, if she was born in China, there is no reason for you to be "included" in her case; you must file an independent I-526 petition.

  • Avatar

    Charles Foster

    Immigration Attorney
    Answered on

    No, an unmarried child of an EB-5 investor under the age of 21 can qualify as a dependent with the primary investor. Since you turned 21, if the EB-5 petition is filed by your mother or father now, you may still be able to qualify under the Child Protection Status Act, given the fact that the I-526 petition was filed while you were still under the age of 21 and unmarried. Yes, you could independently file a separate I-526 petition if you are prepared to make the additional minimum investment of $500,000.

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    John J Downey

    Immigration Attorney
    Answered on

    The timing here is really very close. If you are talking about filing your own I-526 and investing the requisite amount, then that is the easiest way to assure the petition.

  • Avatar

    Kyle Barella

    Immigration Attorney
    Answered on

    Thank you for your questions. Generally speaking, a child's age can be "locked in" for aging out purposes when a receipt notice is produced by USCIS for the I-526 petition. That said, given the short time frame before you turn 21, you may wish to submit your own petition. For more bespoke advice, I suggest you contact a qualified EB-5 immigration attorney.

  • Avatar

    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you have competent legal counsel and move fast, there is a decent chance you can be included in her case.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    To submit both you will need double the investment amount. If you can move quickly and file your mom's before you turn 21 and it is approved, you will be grandfathered in.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    You may want to file immediately - I recommend you immediately consult with an investment immigration attorney.

  • Avatar

    Raymond Lahoud

    Immigration Attorney
    Answered on

    If you are filing your own application, it would have to be a completely separate application process, including a separate investment. Also, you will age out if you file as a dependent, given your age. Contact an immigration attorney for more details.

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