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What options does my father have after his I-526 is denied?

My father filed his I-526 back in 2015 when I was 19. He received an RFE in 2017 and submitted additional evidence. However, this month he received an I-526 denial letter. Since I am over 21 right now, what options do I have? If we appeal, file a motion to reopen/reconsider our case under the name of my father, will my age still be frozen during this time? If we eventually decide to file a new petition (also under my father), will I still be eligible as a derivative beneficiary?

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The time taken to adjudicate, including the appeal, can be deducted from your age, so there is a chance your case could be saved, if there is a legal basis to challenge the denial.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    The Child Status Protection Act freezes your age during the pendency of the I-526 and appeal process if your father prevails on appeal. Your father should assess whether an appeal is viable depending on the grounds for denial through consultation with an experienced EB-5 immigration attorney who can review the case. If he re-files I-526, you cannot be included as a derivative child because you have aged out. You may consider filing an I-526 petition as a principal EB-5 investor, assuming you have EB-5 capital from lawful source of funds or can be gifted such capital and otherwise meet EB-5 visa requirements.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    If there is a strong chance of approval upon filing an appeal of your father's case, then an appeal is an option since if the appeal is approved, you can continue with your father in processing for your lawful permanent residence (since you would not age out in this instance); however, if the appeal is a long shot, you may want to look to the option of filing for yourself as the principal EB-5 investor.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    If a new petition is filed, you will not qualify as a beneficiary because you are 21.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Under the Child Status Protection Act, your age should be frozen during the pendency of the I-526 as well as the appeal process. The likelihood for success depends on why I-526 was denied and whether your father could overcome the denial, as whatever he submitted on RFE was not sufficient. Filing a new petition now will not include you, as you are over the age for a derivative child.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    If you appeal and win, your age would be frozen. Alternatively, if appeal is not strong, re-file with yourself as the principal.

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    Robert West

    Immigration Attorney
    Answered on

    There is a not a lot that can be done.

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    Shenila A Momin

    Immigration Attorney
    Answered on

    If you appeal or file a motion to reopen, you may or may not be covered, depending on the time it takes for the appeal or motion to get approved and under the Child Status Protection Act. Please note that if a new I-526 is filed, then you are not covered.

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    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    If your father appeals and his I-526 overcomes the reasons for denial, then the approval would reinstate the protections under the Child Status Protection Act (CSPA) that you were covered under when your father applied while you were under 21 years of age. If your father withdraws from that investment, does not appeal, loses the appeal, then if he re-files a new I-526, then your current age will be utilized for the calculation needed under the CSPA, unfortunately. Hence, for you to qualify for an EB-5 visa (if not through your father's original I-526 petition), you would need to be the principal investor (or the spouse of a principal investor).

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    Charles Foster

    Immigration Attorney
    Answered on

    With respect to your father's EB-5 investor petition on Form I-526 which was denied, your father should obviously pursue all options available to him after consulting with his attorney, including filing a motion to reopen and reconsider, as well as filing the appeal. If your father is successful and the petition is approved, then you would still have the benefit (depending on the number of days) of the Child Status Protection Act. If your father has to file a new petition, you will not be eligible as his derivative, since he can only qualify his spouse and unmarried children under the age of 21.

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