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Questions and Answers > Other Eb-5 Questions

What happens to an EB-5 dependent who turns 21 years old during consulate processing?

I attended the EB-5 visa interview with my son at the U.S. consulate six months ago. During the interview, we were told to bring proof of residence and bank statements. We mailed back our passports and the required paperwork. One month later, the consulate informed us to submit new medical reports because the ones we provided during the interview have expired. It could take two months for us to get new reports. However, my son will turn 21 next month. Will he still be eligible as an EB-5 dependent?

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Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    Since you likely filed the DS-260 forms and paid the visa fee, you child's age should be frozen by the Child Status Protection act. Check with your counsel to be sure.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    Any time from an I-526 petition that was pending is subtracted from your son's biological age. Then DS-260 must be filed timely. Your immigration attorney should have talked to you about the Child Status Protection Act computation. He or she should also work with the U.S. embassy to remind them of CSPA/age-out issues as applicable in your case.

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    Hassan Elkhalil

    Immigration Attorney
    Answered on

    Yes, your son will still be eligible to receive the EB-5 visa with you.

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    Barbara Suri

    Immigration Attorney
    Answered on

    The Child Status Protection Act allows for the time an I-526 Petition was pending to be subtracted from the beneficiary’s biological age at the time a visa becomes available, so the beneficiary is not penalized for the time the petition was pending with USCIS.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    The dependent child will still be eligible as an EB-5 dependent and he should be able to obtain a visa and enter the US.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Your son's continuing eligibility will depend upon whether he can be considered a dependent under the Child Status Protection Act (CSPA). The CSPA provisions are fairly complex and require knowledge and experience of immigration law. You should contact an immigration attorney experienced in EB-5 matters to advise you of your son's situation and how to protect his eligibility.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    While the I-526 is filed and pending, your son's age is "frozen," and any time spent thereafter in processing can be subtracted from his age when approved. You should inform the consulate of the CSPA and your son's age, but he should be fine to process.

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    Blake Harrison

    Immigration Attorney
    Answered on

    You will be able to subtract the amount of time that the I-526 was pending with USCIS from your son's biological age. Thus, he could still qualify for a conditional green card even if his biological age is greater than 21 years old.

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    Sally Amirghahari

    Immigration Attorney
    Answered on

    Yes. He will still be eligible to get his EB-5 visa, so long as he was under 21 when you filed and received your I-526 petition receipt from the USCIS.

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    Charles Foster

    Immigration Attorney
    Answered on

    Your son, who turns 21 next month, may still be protected under the Child Status Protection Act. For example, the time that the EB-5 petition was pending or after you applied for your immigrant visa may be subtracted from your son's age.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Need to do the CSPA analysis. Should be fine but remind the consular officer of the age out concern.

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    Most likely, yes. Back when you filed the I-526 petition his age was frozen. The only way his age would have been unfrozen was if you had not had a chance to apply for consular processing application upon the I-526 approval for over one year due to retrogression. Since you don't seem to have been born be in one of the countries that is experiencing retrogression, your son should be fine!

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    He should be fine if you are already at the interview stage. Filing the I-526 petition before the 21st birthday "locks in" the child even if they turn 21 later (that protection doesn't last forever, but, again, if you're already at the interview stage and he is just turning 21, you should be fine).