By Marta Lillo
EB-5 attorneys need to have a thorough understanding of U.S. Citizenship and Immigration Services (USCIS)’s updated policy and interpretation of the Child Status Protection Act (CSPA) as it directly impacts the children of EB-5 investors who face the risk of “aging out” and being separated from their parents during the application process.
Immigration attorneys insist that it is crucial for EB-5 legal counsel to be aware of these developments to better assist and protect their clients and their families from this possibility.
The USCIS updated the policy in February 2023 for calculating the ages of children seeking permanent resident status under EB-5. It also explained when an immigrant visa number “becomes available” for calculating the age of children in a green card application in certain situations under the CSPA. In August 2023, the agency clarified that this update can also be used as an “extraordinary circumstance” to excuse some failed applications, particularly I-485 petitions for Adjustment of Status (AOS) that were unsuccessful because of the February change.
Dennis Tristani, founder and managing attorney at Tristani Law, LLC, explains the guidance “altered how a child’s age is calculated under the CSPA in certain situations, allowing more children to qualify and immigrate with their families.”
However, the attorney cautions that not all children in EB-5 applications will benefit from that policy update, as it “did not include dependent children who aged out under prior USCIS policy, and whose priority dates became current more than a year prior to the policy change in February of 2023.”
Calculating children’s aging out before and after the February policy update for EB-5
Until February 2023, managing EB-5 applications that included children who could turn 21 before their green card process was complex. In that situation, these dependents no longer qualified for benefits from their parents’ EB-5 petitions unless they could “lock in or ‘freeze’ their age under 21 based on complex CSPA calculations,” Tristani explains.
This “freezing” of the child’s age required a green card to be available, however. The EB-5 attorney in charge of the application had to take several steps to “seek to acquire” a visa within a year after the I-526 petition was approved. If the visa remained unavailable based on the Department of State (DOS)’s monthly visa bulletin, the child continued to age until a visa became obtainable.
The USCIS’ update of the CSPA broadened the timeframe for this visa availability. “This is incredibly beneficial and will allow more dependent children of EB-5 investors to freeze their CSPA age under 21 and continue the green card process with their family,” the attorney adds.
How calculating children’s age in the EB-5 process works now
Tristani says that the March 2023 Visa Bulletin, which immediately followed the February update, already reflected the benefits of this new guidance for EB-5 applications.
The bulletin shows two charts for EB-5: Chart A is for Final Action Dates, and Chart B is for Dates for Filing. Chart B confirms the time when an EB-5 applicant can start the application process at a U.S. Consulate abroad or file Form I-485 (AOS) in the U.S. “USCIS’ new policy confirms that it will now determine ‘visa availability’ by the dates in Chart B, which are often months or years later (ahead of) the dates in Chart A,” he says.
In the March 2023 bulletin, the cutoff date for determining visa availability for Indian EB-5 applicants was Jun. 1, 2018. However, the cutoff date in Chart B was Dec. 8, 2019. This means a family could file Form I-485 in Mar. 2023 and lock in their child’s age if they submitted their I-526 petition before Dec. 8, 2019. “This is a significant advantage as it includes a much larger group of potential I-485 applicants who filed their I-526 petition between June 2018 and December 2019, which can now take advantage of the I-485 application process and ensure that their dependent children will receive green cards with the rest of their family,” Tristani insists.
Bernard Wolfsdorf, managing partner at WR Immigration and an immigration lawyer, highlights the benefits of the update for AOS filing. “The USCIS guidance that filing an adjustment under the Final Action Date (chart A) or even Date for Filing or (chart B-if open for employment-based filings in the month filed) freezes the child’s age permanently as long as the adjustment application is pending. This provides a huge advantage for adjustment cases over those seeking to avoid age-outs while consular processing abroad.”
Consular processing for EB-5 applicants is subject to a more restrictive rule regarding aging out by the DOS compared with the same process done directly at the USCIS, according to Wolfsdorf. “The Department of State rule is the child’s age is only frozen if you file the form DS-260 and pay the filing fee when a visa is available under chart A, the Final Action Date.”
The DS-260 form applies only to EB-5 visa applicants who are not present in the U.S. upon approval of their I-526. It can be filed online at the Consular Electronic Application Center or through an immigration attorney at a U.S. consulate or embassy abroad. This form is relevant because it grants admission to the U.S. to continue the EB-5 process.
Pending issues regarding the application of CSPA in EB-5
Wolfsdorf cautions against several disadvantages when pursuing consular processing of an EB-5 application or AOS. “One is that it takes months to transfer the file from USCIS to the National Visa Center [VSC] after the petition is approved, and only then can you ‘seek to acquire’ an immigrant visa, which has to be within one year of visa availability file by filing the form and paying the filing fee. However, if you file an adjustment while able to under Chart A or Chart B, the child’s age is permanently frozen forever, even if the visa line retrogresses, provided the petition is approved. In this instance, you do not have to worry whether a visa will be available at the time of approval of the petition, which may be months or even years down the road. This issue has been raised with the Department of State, but they will not budge on it presently.”
In addition, Tristani suggests that EB-5 legal counsel take caution on how the USCIS uses Chart B. “Chart B can only be used to determine visa availability for CSPA purposes when USCIS confirms that it is using Chart B to determine when to accept I-485 applications. This determination is typically made by USCIS a few days after the upcoming month’s visa bulletin is released and published on USCIS’ website.”
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