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Questions and Answers > EB-5 Investments

How can the stepson of the main EB-5 applicant also immigrate?

I was born in China and am married to a man who was not born in China. I have a son (I am the birth mother) and my husband is his step dad. We want to apply for EB-5 with my husband as the main applicant. However, I remember hearing about a law that the child must have been a certain age when I married to have the step dad as the main EB-5 applicant. Will our application work if my son was under 18 years old when we married? Will we all be able to get EB-5 green cards?

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Answers

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The definition of a "child" for purposes of determining who is a dependent in an immigration case, includes a step-child who is under 18 at the time the parents marry. Therefore, you son would be considered your husband's dependent for inclusion in the EB-5 case. Another possibility is for you to be the EB-5 investor/principal applicant. Your son and your husband would be considered your dependents and you could still use your husband's country of birth so that the visa number retrogression issue for China-born applicants does not affect you. This is allowed and it is called "cross-chargeability."

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    Jimena G Cabrera

    Immigration Attorney
    Answered on

    As long as your son was under the age of 18 when the step-relationship was created (you married your husband), he may be included in the petition.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    It is possible for a step child to be a derivative beneficiary under certain circumstances. An immigration attorney would carefully review your case to prepare an approvable strategy for immigration processing.

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    Meetesh Patel

    Immigration Attorney
    Answered on

    For EB-5 purposes, it does not matter how old your son was when you got married. It matters how old he is when you apply for the EB-5 petition. Your son must be below the age of 21 when you file your I-526 application and depending on how old he is at the time of filing the EB-5 petition, he may also age out if the petition is approved after he turns 21 and does not fall within the age-out protections of the Child Status Protection Act (CSPA).

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    If you son was under 18 at the time of marriage, that son is eligible as a derivative beneficiary. However, your child must also be under 21 to be included, as calculated via the Child Status Protection act.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, the U.S. Citizenship and Immigration Services has affirmatively addressed this issue that a step child is considered the child of the step parent. This issue can be easily resolved by consulting an EB-5 attorney.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    As long as you married before he was 18 and he is under 21 when he immigrates, then he can be included.

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    Gregory Romanovsky

    Immigration Attorney
    Answered on

    Yes, your recollection is accurate: your son must have been under 18 at the time when the marriage took place. If he was, he is considered your husband's ''son'' for immigration purposes. Good luck!

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    John J Downey

    Immigration Attorney
    Answered on

    As far as I know the child should be legally adopted by the step father, but you may wish to contact an immigration attorney familiar with family immigration.

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    Stephen Bander

    Immigration Attorney
    Answered on

    Since your marriage took place before the child's 18th birthday, your son will qualify as your current husband's child for purposes of U.S. immigration. You can find this at INA Section 101(b)(1)(B). Your husband's EB-5 immigrant visa petition needs to be filed before your son's 21st birthday, however, for your son to be able to derive immigration benefits. If your son is now over 21, he cannot immigrate with your husband and you on the EB-5 petition.

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    Stephen Berman

    Immigration Attorney
    Answered on

    If the child was under 18 at the time of marriage, it is a child under the Immigration and Nationality Act.