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How exactly is the EB-5 aging out process calculated according to CSPA?

We applied for EB-5 in November 2018. My child''s biological 21st birthday was in June 2019. So he was 20.5 years old at applying and had 6 months before his 21st birthday. We got I-526 approval in April 2021 and at that time the status for our home country (India) was current in the visa bulletin. So when is the latest we can file DS 260 and still get my child the green card? Is it October 2021 (6 months after approval, since 6 months were remaining at time of applying in 2018) or is it April 2022 (1 year "sought to acquire")?

Answers

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    F Oliver Yang

    Immigration Attorney
    Answered on

    You have one year to "seek to acquire" after a visa number becomes available. Therefore you have until April 2022 but it doesn''t hurt to file DS-260 or at least pay the visa fee before October to avoid confusion.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Why not file as soon as possible to lock in eligibility? And then you can delay later if necessary.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You have 12 months from the date of approval of the petition to seek to acquire status. However, if India backlogs in the meanwhile, you have a huge problem. You need to get NVC to expedite the issuance of the DS-260 so you can pay the fee and freeze the child''s age. Do not delay - do it now. We even mail the forms to the State Department to show we "sought to acquire" resident status.

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    Stephen Berman

    Immigration Attorney
    Answered on

    Subtract the number of days the application was pending from the child''s age and if he is still under 21, then CSPA protects him.