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What happens if my child ages out before my EB-5 application gets approved?

My son is currently 20 years old and five months. He is under 21 now on the date of my application, but will most likely be over 21 when my EB-5 is approved. Can he immigrate with me if I apply now? How can I include his name among my family members?

Answers

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    BoBi Ahn

    Immigration Attorney
    Answered on

    According to the Child Status Protection Act (CSPA), which governs the "age out" provision, your child's age is frozen during the I-526 petition processing time, but depending on whether you are subject to the priority date backlogs, you child may not be able to process before his aging out.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    It is advisable that you include your son now, as you are filing the I-526.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It depends. Your child's age is frozen under the Child Status Protection Act during the pendency of your I-526 petition. Once the petition is adjudicated and, if an immigrant visa number is immediately available to you and your derivative family members, then all of your family can consular process with you. If you are from a country that experiences an immigrant visa backlog, then your child will continue to age after your I-526 is approved and may age out, depending on the visa backlog situation.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    Maybe. The answer depends on a few unknown variables. You should know that his age "freezes" during the pendency of the I-526 petition, so if it takes 12 months be approved, he is still 20 years and 5 months old at that time. If your case is not impacted by retrogression, the family can seamlessly continue with the green card process. If it is impacted by retrogression, you must see how far back the priority date is set. If it is set back 2 years, your son will continue to age, which means he has 7 months from approval for his turn to be reached and to pursue permanent residency. So, the answer is he may or may not age out. No way to tell at this point in time. It is safer for 20-year-olds (and probably 19-year-olds) to be the principal EB-5 applicant.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    If you get your EB-5 filed soon, and if it takes, e.g., 18 months to approve it, then on the day it is approved, your son can subtract the 18 months it took to approve your case from his age. If he is under 21 after that subtraction, he can file for his green card then, provided the quota from your country is current.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    It depends. He will be protected for the number of months the I-526 is pending under the Child Status Protection Act.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    When I-526 is filed, your child's age is frozen at that time for the pendency of the application. Once I-526 is approved and your visa number is current, your child may continue to be processed for the visa application, as he will be considered 20 years old still. However, if you are from those countries that have a retrogression of visas, it becomes a different matter. Once the I-526 is approved and you cannot immediately proceed to the visa application or adjustment of status step, your child will continue to age from the 20 years and 5 months point when your petition was filed. If the visa does not become available (current) before he reaches 21 years, then he is aged out.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    As long as your country's priority date are current your son should be fine. Discuss this issue with your investment immigration attorney immediately.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    Under the CSPA rules, the age of children is frozen during the petition processing. In other words, if your son is 20.5 years old on the date of application, he will be 20.5 years old on the date of approval. This gives you six months to apply for the visa and if you do that, he will be able to immigrate as your dependent (even though he will likely be 23 or 24 when the visa is issued).

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    Sarah Xiao Qian Mu

    Immigration Attorney
    Answered on

    You can file a separate petition for him once you obtain your permanent residency.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Provided you take steps to seek to acquire permanent resident status after the petition is approved, you can freeze your child's age. This is best done by payment of the consular visa fees and submission of the DS-160 to NVC. Provided you not from a backlogged country, and have competent counsel, you should be able to include your child.

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    Charles Foster

    Immigration Attorney
    Answered on

    Your child may still be able to immigrate with you even if he ages out, given the fact that if you filed your EB-5 petition on Form I-526 while your son was still under the age of 21, given the backlog in adjudicating EB-5 petitions your son would be covered by the Child Status Protection Act, and therefore USCIS would not count the time while it is adjudicating the petition against the child's age.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    As long as he is under 21 when you file the I-526 petition, he is included. Now, if you are subject to the visa retrogression (being an applicant from mainland China or Vietnam), the waiting period to apply for condition permanent residency may be longer than the policies that protect him from aging out. Otherwise, he should remain part of the process.

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    Uche Nwaneri

    Immigration Attorney
    Answered on

    Your child will be protected by the Child Status Protection Act (CSPA), because the I-526 application was filed before his 21st birthday. The child would still be protected even if he ages out before the I-526 is approved. What is material at this point is the date the I-526 was filed.

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