I am from India and currently living in the U.S. with my family on a non-immigrant visa. I am considering applying for EB-5 but I am worried that my child might age out. Given the current processing times at USCIS and the retrogression for Indian investors, do you think my 10-year-old child could age out if we apply now?
Based on the facts on India, there is no possibility this type of scenario will occur. In addition, assuming your assumption were to occur the usual option to prevent a child to age out like CSPA may come to the rescue. To allay your fears, consult an EB-5 attorney as part of your plan.
Anything is possible, but as of now, it's not likely that a 10-year-old dependent will age out if an Indian investor participates in an EB-5 program now. This is particularly true, given the fact that the USCIS is taking a long time to adjudicate I-526 petitions, and actually that is in your favor. Under the Child Status Protection Act, the time it takes to adjudicate the petition, which could be several years, would be subtracted from the age of your dependent child.
It is most likely that the 10-year-old will not age out. The current estimate is slightly over eight years, plus any time the I-526 was pending is subtracted from the child's biological age.
If you have a 10-year-old, that means you have at least 11 to 13 years before she ages out (with CSPA protection), so it is highly unlikely. None of the unofficial estimates presented by the U.S. State Department show the Indian waiting line as that long. While things could change, this seems unlikely.
10-year-olds will probably be OK. Three years or so for I-526 process, plus the remaining two years to complete the retrogression wait (it's based on time of filing the I-526, not approval), means they'll still be under 21.
Although you can never guarantee, if the backlog is 8.4 years for India, most law firms would feel comfortable estimating that the 10-year-old won't age out.
Your 10-year-old son should be fine. However, I recommend you discuss this with your investment immigration attorney for absolute clarity.
No, he will not age out. Once your I-526 is approved, your son will be included in your application despite the long wait of retrogression.
To be honest, nobody knows the answer to your question. Not to be able to file for adjustment of status for 11 years after your I-526 petition is approved is plausible but very unlikely. Remember that when you apply for the EB-5 initially through the I-526 petition, your 10-year-old child's age is frozen at 10. Only after the I-526 is approved, if you could not proceed with filing I-485 due to retrogression for 11 years, will your child age out. That said, there are a lot of pending proposals regarding all aspects of immigration in general and EB-5 in particular. Guessing that far out is almost impossible given the political ramifications of EB-5 and how the Congress and the government will legislate and administer, respectively.
