When is the best time for Chinese national applicants to add their children to their EB-5 petition?

Seek the advice of your EB-5 Immigration attorney. The filing of your EB-5 petition is not your application or your child?s application for conditional permanent residency. The filing of an F-1 Visa application for your child should be approved. Once the I-526 petition is approved then it may be difficult for your child to apply for an F-1 Visa.

You should not omit your daughter from I-526 petition. Because she is not a principal EB-5 investor filing an I-526 immigrant petition, it will not affect her F-1 visa application.

Being a derivative dependent of your I-526 will not affect her ability to obtain a nonimmigrant visa (i.e., student visa) since she is not the principal applicant.

Please note that EB-5 application you file is yours, not your daughter's. She would not be charged with immigrant intent until she files for the immigrant visa (DS-260) when the priority date becomes current. Thus, you may list her in the I-526 application without any concern of her F-1 being denied, particularly if you noted that you will do the consulate processing as the next step.

The I-526 petition now requires information about your spouse and all children. Therefore, you should completely and accurately fill out the form. When your daughter applies for her F-1 student visa, she must complete Form DS-160, which asks about any immigrant petitions being filed for the applicant. She can answer “no” because she is not the beneficiary of this petition; she is only a possible derivative applicant after your immigrant petition is approved. If you left her off of the I-526 petition, this might raise additional questions that could be awkward for you to answer but, ultimately, it is the actual familial relationship that controls the situation, not whether all dependents were listed on the I-526 form. Still, it is better to include her.

The Form I-526 asks of each and every applicant, regardless of their country of origin, to provide information relative to their spouse and children. It is my opinion that Chinese applicants should add their children at the time of filling out this form.

What you state on form I526 is not binding, as you say; choice of venue can be changed. Although, given the current visa backlog for Chinese nationals, your daughter should be able to obtain F1. We have clients who have successfully obtained F visas while the I-526 was pending. As always, you should discuss your family situation with your attorney, so you can properly strategize.

You can add your 10-year-old daughter at any time prior to the issuance of your immigrant visas and admission to the United States as Lawful Permanent Residents. Having said that, you must correctly answer all questions as part of the process and, at different stages, you are asked to list family members and you must do so. There is a current backlog under the EB-5 quota with which the American Consular Officer is very familiar and your daughter can still qualify for an F-1 Student visa under the concept of "dual intent" whereby one has a short-term intent to study in the U.S. and a long-term intent of eventually becoming a Lawful Permanent Resident. The key is to make sure that, wherever required, you fully disclose that you do have a daughter and, furthermore, that you never make any misrepresentations. Your daughter is not petitioning since you would be the petitioner.

You will be listing your spouse and all of your children on your I-526 when you file it. You are not permitted to pick and choose whether to reveal whether you are married and have children.

The I-526 requires you to list all your children at the time of filing. Leaving a child off may need to be explained at some time in the future. It is correct that listing the child may have an impact on his or her ability to obtain a student visa but, in practice, we are seeing that most consuls will not deny an F-1 solely because the child is a derivative beneficiary on an immigrant petition.