How can EB-5 applicants best prepare for their dependents to not age out of the process?

Question

I am an EB-5 investor born in India with my daughter as one of my dependents. We are currently in the U.S. on a different visa and have invested in an EB-5 project with a priority date of September 2017. Our application is still pending. At the time of filing, my daughter was 19 years old. In 16 months, she will turn 21. I am aware that her age is frozen until the I-526 is approved. I heard that there is likely to be a visa cutoff for Indian applicants in 2019, and I want to know what the chances are that she might age out. If there is a real possibility that she could? Are there any steps I can take to make sure this does not happen?

A Olusanjo Omoniyi · Answer

There are two options to your situation. First, you may withdraw your petition, then re-file it and designate you daughter as the primary petitioner with both parents as the dependents. Secondly, if you decide to keep the current petition, your daughter may still be protected under the Child Status Protection Act (CSPA), a law that protects certain children from aging out. Your child will not age out even if she is over 21 when the petition is approved. However, the law requires that you must file for the immigrant benefit for the child within two years after the approval of the underlying petition (i.e., I-526) in which the child was designated as a dependent. Thus, in this instance, your daughter may surpass 21 at the point of approval of the I-526, but within two years of approval of the I-526, you must file I-485 for adjustment of status for you daughter. Advisably, consult your attorney or other immigration to explore your options.

Daniel A Zeft · Answer

In April, the U.S. Department of State official who oversees the immigrant visa numbers commented that he estimates that the waiting line for Indian EB-5 investors will start in the summer of 2019.  However, since the specific timing of such an immigrant visa backlog on Indian EB-5 investors is not known, it is not possible to determine whether your daughter may age out.  Also, since the I-526 petition listed your daughter as a dependent, there are no steps that you can take to prevent this from happening.

Bernard P Wolfsdorf · Answer

You get to deduct the time the petition is pending only from her age. When approved, you must seek to acquire a visa by filing forms DS-260 (or I-485), but filing the DS-260 does not freeze her age unless the visa is available based on the final action date in the visa bulletin. One can only hope you get an approval soon and get to lock her age before summer 2019 when the cutoff date for India will likely be established. Make sure you have a lawyer who understands CSPA.

Julia Roussinova · Answer

It is hard to predict whether or not your daughter may get CSPA protection and be able to adjust with you as the derivative in the event India retrogresses. One of the options would be to have your daughter as the principal EB-5 investor and file her independent I-526 petition while the investment amount is still $500,000 or find other immigration options for her.

Dale Schwartz · Answer

The quotas from India for EB-5 are likely to remain a number of years behind, so your daughter will probably age out (even with the additional time she gets while your petition is pending). You need to make other plans for her to remain in the U.S., such as through a student visa, her own EB-5 case with another $500,000 investment or another type of visa.

Salvatore Picataggio · Answer

That is very hard to predict. Right now, the goal would be to try to file for every step of the green card process as quickly as you can, then prepare to challenge the NVC or consulate that may claim the child is aged out.

Mark AM Catam, Esq · Answer

Depending on the outcome of the CSPA calculation and if the India retrogresses, here age when the priority date becomes current, she may get CSPA protection.

Jinhee Wilde · Answer

If the visa numbers do not move within two years, or however many months your daughter has until she reaches 21 to be able to file the I-485 adjustment, then she is out of luck. Let us hope that since you filed relatively early compared to many of your countrymen who may be filing now, your wait will not be as long and your daughter may be able to adjust with you.

Lynne Feldman · Answer

Out of your control if the priority dates retrogress. You can lock in the date by filing for adjustment if an option, filing I-824 or filing DS-260 within one year of visa availability.

Charles Foster · Answer

An EB-5 applicant can best prepare for his or her dependents not to age out by filing the EB-5 investor petition on Form I-526 at the earliest date possible in order to avoid that possibility.  Given the fact that you come under the quota for individuals born in India and you have filed your EB-5 investor petition on Form I-526 in September 2017, your application will remain pending for more than a year. During that time, your daughter will be protected under the Child Status Protection Act and if it takes, for example, 18 months, that period of time would be subtracted from her age. Thus, for example, if by the time she became eligible to receive her green card if she was 22 years and 6 months old, and if the immigration service took one year to adjudicate her petition, then she would possibly still be under the age of 21 for the purposes of obtaining conditional lawful permanent residency. If in fact there is a cutoff for Indian applicants in 2019, then that adds a year or longer and your daughter could age out.  You will have to wait to see what happens or, and this will not be a popular suggestion, have your daughter file an independent I-526 petition in her own name while the minimum investment amount is still $500,000.

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How can EB-5 applicants best prepare for their dependents to not age out of the process?

Answers

A Olusanjo Omoniyi

Daniel A Zeft

Bernard P Wolfsdorf

Julia Roussinova

Dale Schwartz

Salvatore Picataggio

Mark AM Catam, Esq

Jinhee Wilde

Lynne Feldman

Charles Foster