Questions & Answers

What is the process to change the filing name from my dad to me?

My family submitted the I-526 application in September 2018 with my dad as the principal applicant. However, I am currently 20 years old. We just found out that I am too old to get a green card. We are wondering what the process is to change the principal applicant from my dad to me? Who should I contact?

Answers

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on December 20, 2018

  It appears that you seem to fear that you will age out, but by all account, you may not since you were included in your family petition. However, if you are from any of the countries such as China and Vietnam which are experiencing long waiting period you may have to consider a different decision such as the possibility of either amending the pending the petition or an outright withdrawal and refiling by which you will be redesignated as the principal petitioner. Advisably, consult your attorney in time before a decision is made on your I-526 by the USCIS.

• Julia Roussinova

  Immigration Attorney

  Answered on December 13, 2018

  First, make sure your attorney discusses with you all applicable CSPA protections. You cannot change the filing of the pending I-526 from your dad to you. Your dad needs to withdraw his I-526, obtain capital back from the project, gift the funds to you and you have to file as a principal EB-5 investor showing lawful source of gifted funds.

• Charles Foster

  Immigration Attorney

  Answered on December 13, 2018

  Unfortunately, there is no formal process to transfer an EB-5 petition on Form I-526 from the petitioner to another party whether it is a family member or otherwise. You would effectively have to re-file the EB-5 petition on Form I-526 on your own, starting the process over again. However, even though you are 20, there is some possibility, given the backlog in adjudicating the I-526 petitions, that you would be protected during the time it takes from the time you file the petition until it is approved. That time could be subtracted from your age under the Child Status Protection Act. You should consult with your attorney, who preferably would be an experienced attorney board certified in immigration and nationality law in the state where he or she practices and has not only significant experience in immigration law, but specifically in the representation of EB-5 investors.

• Ying Lu

  Immigration Attorney

  Answered on December 12, 2018

  There is no way to change the principal applicant unless you invest and file a new I-526 under your own name. Also, since you are 20 years old, you are still eligible to be included in your father's I-526. Your age will be frozen at the time of filing of the I-526. Once your father's I-526 is approved, he must file either the DS-260 or I-485 immediately before you age out. If you are from a country that has no visa retrogression, you should be fine. However, if you are from China or Vietnam, you are very likely to age out because your age won't be frozen during the visa retrogression period.

• Robert West

  Immigration Attorney

  Answered on December 11, 2018

  You have to file a new application. You cannot switch the same application.

• Mitch Wexler

  Immigration Attorney

  Answered on December 11, 2018

  You might very well be protected pursuant to the Child Status Protection Act. This would depend on your parents' country of birth and when your I-526 is approved. You should consult an experienced immigration counsel. If not, you would need to file a new I-526 petition with its own investment. You can not switch petitioners. If you need to tap into the same $500,000 from the pending investment, you should speak with the project to see if they can quickly refund so you can refile under your name. The source/path of funds documentation will need some work since the investment must then come from you.

• Salvatore Picataggio

  Immigration Attorney

  Answered on December 11, 2018

  Unless for are from mainland China, filing the I-526 before your 21st birthday should keep you protected throughout the process. The Chinese retrogression (backlog) is probably too long now for a 20-year-old to stay on mom or dad's application. Some of my esteemed colleagues have said they won't take a family with a child who is over 16, and I can see why!

• Phuong Le

  Immigration Attorney

  Answered on December 11, 2018

  You can simply file a new I-526 petition with your own $500,000 (or gifted from your dad). Unfortunately however, there will be no way to keep your original priority date.

• Jinhee Wilde

  Immigration Attorney

  Answered on December 11, 2018

  There is no easy transfer of filing. The only way that you could become the principal applicant is if your father withdraws his application, gets the funds back and then gifts it to you to invest and file your own petition. This will be a new application with you as the principal investor and applicant. However, just because you are 20 now does not necessarily mean you cannot get the green card as your father's derivative, unless you are from mainland China, Vietnam or India, whose countries will have visa retrogression issues. As this retrogression issue should have been disclosed to your father and proper strategy should have been developed before he filed his I-526 in September 2018, I am concerned why you are asking this question now. An immigration process is complex and confusing. It is not advisable to blindly go through the process because you heard that many people are doing certain things. Please consult with an experienced immigration attorney to develop a comprehensive strategy that is right for you and work with the professional who will look out for your interests and circumstances.

• Belma Chinchoy

  Immigration Attorney

  Answered on December 11, 2018

  Cannot be done. You can withdraw, re-figure out the source of funds and investment and refile.

• Robin J Gray

  Immigration Attorney

  Answered on December 11, 2018

  Unfortunately, you cannot simply change your name with your father's name. You would need to file your own I-526 petition and show that you also have the source of funds in which to proceed with the petition.

• Marko Issever

  EB-5 Broker Dealer

  Answered on December 11, 2018

  Unfortunately, you cannot takeover your dad's application but why do you think you are too old? When you apply for I-526 your age is frozen. If your country is processing current and you are able to file for the conditional green card immediately after you get your I-526 approval, most likely you should be fine. Please consult with your immigration attorney on your specific case since it all depends if there already is or expected to be retrogression in your country of citizenship. If your dad decides to withdraw voluntarily, you would then need to apply with an all-new application and the clock would have to reset. Of course, since your dad applied only a few months ago, that is not a major consideration.

• Dale Schwartz

  Immigration Attorney

  Answered on December 11, 2018

  Didn't you have an immigration lawyer help you? The Child Status Protection Act freezes your age when the application is filed and you keep that age until the application is approved. So, e.g., if it takes 14 months to approve your EB-5 case, you get to subtract 14 months from your age on the date of approval. If that makes your recalculated age under 21, you will have 12 months to file for your green card.

• BoBi Ahn

  Immigration Attorney

  Answered on December 11, 2018

  It's not that simple. He would have to withdraw his I-526 petition, divest his investment (in accordance with the investment agreement terms), gift or loan you the money so that you can invest the money as your money at-risk, etc., and then you would have to submit a new I-526 with you as the investor.