I am a Chinese EB-5 investor and my son is 11 years old now. Due to the backlog, I am considering making him the main applicant for the EB-5 case to avoid the “aging out” scenario.
Although there does not seem to be any clear rules on the minimum age of an EB-5 applicant, USCIS must have some general standards about how old an EB-5 applicant should be and circumstances around it?
How should I best structure my application to make sure my son will benefit from this EB-5 investment? If making him the main applicant, what should I think about?
It could be possible to have your 11-year-old child qualify as the principal applicant on an EB-5 application. You will want to work with your immigration attorney to discuss further.
While there is no minimum age requirement under the INA, the EB-5 regional center projects require an investor to be at least 18 years of age, the legal age where contracts are enforceable. The investor must also establish competency in the country or state of residence when signing contracts, agreements and other documents relating to the investment. Further, it is my understanding that under Article 12 of the General Rules of the Civil Law of the People's Republic of China, a person under the age of 18 may take part in civil activities (including entering into enforceable agreements) appropriate to the age of the person and intelligence. That Chinese courts will also take into account the value of the contract and whether it is a contract for necessities. Thus, Chinese law would seem to disfavor a contract signed by a minor for the purchase of securities valued over $500,000. EB-5 is not a contract for necessities.
Since he is a minor, he may not be legally able to enter into contracts/agreements for the investment. Better to have the parent stand as the EB-5 investor.
We would not recommend that you make your 11-year-old son the primary EB-5 petitioner given the fact that at that age he may not be deemed to be of sufficient age to be viewed as a bona fide EB-5 investor. However, you have raised a real question that given the significant backlog currently under the quota for Chinese investors, it is conceivable that otherwise your son would age out. There is some prospect that Congress will enact a provision that will allow the primary EB-5 visa petitioner to transfer same to a dependent son or daughter prior to their aging out, but that is not certain at this time. But given the age of your son, we recommend that you or your spouse be the primary petitioner; I say this in part because I am somewhat optimistic that in the end the U.S. Congress will do the right thing and one way or the other increase visa numbers that will benefit Chinese petitioners.
While "aging out" is a concern and good consideration in EB-5 cases, it is more of an issue in circumstances where a child would turn 21 before the petition is approved. In this situation, someone at 11 is rather too young and still has enough time to be under 21. In spite of the waiting period, it is better that the parent should be the main applicant in this circumstance. Advisably, consult an EB5 attorney to plan on your idea.
USCIS representatives have previously stated at a meeting in Miami that they are not imposing age restrictions on EB-5 investors, as long as the investment contracts are governed by appropriate provisions that allow for minors to invest without being able to rescind the contracts when they turn 18. Children 14 and older can sign immigration forms independently. Anyone younger than that has to have the forms signed by a guardian.
While there is no clear rules on this, I have seen 14-year-old EB-5 applicants. 11 years old might be risky.
Unfortunately, due to the fact that such a long visa retrogression was not foreseen by USCIS, they have not yet come up with a firm solution for dealing with how to have a minor sign up as the EB-5 investor. In U.S. a minor (under age 18) is not considered old enough to enter into a binding legal contract. Thus, entering into various agreements, subscription agreement, limited liability agreement, etc., necessary to be an EB-5 investor is not technically feasible. However, due to the extraordinary visa backlog for the Chinese investors, most of the regional centers have been allowing the parents sign for the minor and have the child re-affirm/execute on his own when he turns 18 years. Since the parents are able to open bank accounts and make investments for their children under UTMA or UGMA, this law is what they are relying on to do this. Whether USCIS formalize this in their new EB-5 regulations remains to be seen, but most of us in the industry think they will.
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