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Are 20-year-old children too old to be included in an EB-5 application?

I want to immigrate to the U.S. with the EB-5 program. My twins are 20 years old. If I apply now, will they make the 21-year-old cut-off line for dependents? What about when we apply for conditional green cards? Will they lose their eligibility when they turn 21 years old?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    You should file your I-526 petition for your children turn 21 years of age. If you are not subject to retrogression, then even if your children turn 21 years of age during the EB-5 process, they will still be able to obtain their conditional permanent residency.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Provided you not from a backlogged country, or your country does not become backlogged, there is a good chance the case can be successfully completed to include them.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    If you apply now, before they turn 21, their ages are frozen until your EB-5 case is approved.

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    Ying Lu

    Immigration Attorney
    Answered on

    If you are not from a country with EB-5 visa retrogression, such as China and Vietnam, your children are not very likely to age out as long as you file your I-526 before they reach 21 years old. Your children's age will be frozen on the date when you file your I-526 petition. For example, your children are 20 years 3 months and 10 days old and you file your I-526 today, their age will be frozen at 20 years 3 months and 10 days old during the adjudication of your I-526 petition. Once a decision is made on this petition, their age will continue to grow. So, as soon as your I-526 is approved, you should file either the DS-260 applications or I-485 applications for them before they reach 21. In the example listed above, you should file their DS-260 or I-485 in 8 moths and 20 days after the I-526 is approved.

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    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    The central question will be what country were you or your spouse born in? The reason is that the country of birth determines what the potential waiting line will be like after approval of the initial EB-5 petition. Certain countries such as China, Vietnam, India, Brazil and maybe more will have to wait two years or more before they can become permanent residents. The filing of the first petition will have the effect of freezing your children's age if your children are under 21 years of age. During the time the petition is pending, their biological age will be reduced by the amount of time that the petition was pending. Upon approval of the petition, they will have to then apply for their immigrant visa or green card within a specific amount of time before they age out or have their age unfrozen. Hence, there may be time for you to apply for yourself and include your children. I would recommend speaking with an EB-5 specialist who understands not simply EB-5, but also the intricacies of the Child Status Protection Act.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You should file ASAP since upon filing of the I-526, your kids' ages will be frozen and covered under the CSPA while I-526 is pending.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    It depends on your country of birth. If you were born in China, Vietnam or India, they likely will not be able to complete the process and still be considered dependents. Even if you were not born in one of those countries, you should consult with an experienced immigration attorney to make sure the I-526 petition can be submitted before their 21st birthday.

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    Blake Harrison

    Immigration Attorney
    Answered on

    It depends on your country of birth. There are a few countries that have a wait time that could cause your children to "age out." You will want to work with an experienced EB-5 attorney to provide guidance on this issue.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    As long as you apply when they are under 21, they should fall under the rules of the Child Status Protection Act and be able to be included with your case.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    If you are not from one of the countries that has visa retrogression, such as China or Vietnam, or one of those countries that is expecting to have visa retrogression, such as India or Brazil, then your children may immigrate with you as dependents. Under the Child Status Protection Act (CSPA), the children's age will freeze at the time of I-526 filing and when I-526 is approved and the visa numbers are open/current at that time, you could file for the visa applications for them still as your dependent children, even though their actual age when I-526 approval will be older than 21. This is because you can subtract the time that I-526 has been pending from their age at the time.

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    Mark Davies

    Immigration Attorney
    Answered on

    You have left out a critical detail: What nationality are each of your family members and in which country were they born? Your answer to this question will make a significant difference to our answer.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    The answer to your question turns on which country you and your wife were born. India, China, Vietnam and Brazil are facing retrogression. You should discuss this with your investment immigration attorney in detail before you invest and file your EB-5.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    This would depend on whether your country of origin is subject to visa retrogression.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    This is a great question. Like all great questions, the answer is, "It depends!" If you are a China-born applicant or a Vietnamese applicant who is already experiencing retrogression, the answer is almost definitely that they will not make the cut-off. They will age out waiting for your application date to be current. If you are a citizen of any other country, you have a good chance that your twins will not age out, but again, that also depends. As soon as you file for the EB-5, by filing the I-526 application, the age of your twins will be frozen. So, let's assume that you do that right away so that your twins at the time of I-526 application are still less than 21 years old. Then, once the I-526 application is approved, no matter what their actual age at that time is, you will have one year to apply for adjudication. If at that time your country is processing current you should not have a problem. If, on the other hand, your country is not processing current and you need to wait, that is when you could run into problems. This is indeed very difficult to predict. Again, it all depends on the probability that your country of birth would or would not experience retrogression in the future. I would strongly recommend you to get professional advice before proceeding any further.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    No, the twins won't generally be too old to be included in an EB-5 petition, but they must be included at the beginning of the application process purposely to prevent them from being unable to apply for conditional green cards when the I-526 is approved. The existing law, the Child Status Protection Act (CSPA), protects certain children from aging out and allows them to be considered for green cards within a certain time frame after the I-526 has been approved, even if they might have surpassed 21 years of age by the time the I-526 is approved.

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    Phuong Le

    Immigration Attorney
    Answered on

    As long as you're not from the countries currently in retrogression (or close to it), such as China, Vietnam, India, Brazil, etc., you still have a decent chance at including them. Consult with an EB-5 attorney for a full analysis, though.

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    Charles Foster

    Immigration Attorney
    Answered on

    Since your twins are 20 years old, you could arguably still qualify them by filing immediately an EB-5 investor petition on Form I-526. At that time, their age will be frozen under the Child Status Protection Act until such time as the EB-5 petition is approved. Then, if in the U.S., they can file for adjustment of status. Again, they could still be eligible. Similarly, if you apply for an immigrant visa through the National Visa Center, they may still have sufficient time to qualify for lawful permanent residency under the Child Status Protection Act, which will allow them to obtain, along with their parents, their conditional permanent residency.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    As long as they are under 21 before the I-526 petition is filed, you are OK to proceed all the way through the end of the process with them. However, if you are subject to visa backlogs (only Chinese investors for now) the legal protections for the children who turn 21 may run out before you can apply for the green card. They will not lose eligibility when they turn 21, but if the green card step takes too long, they may later lose eligibility.

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