Questions & Answers

What options do we have for our 20-year-old daughter when retrogression hits India investors in July?

We applied for EB-5 in October 2018. Our daughter was 20 years old then. Our project got the exemplar approval a couple of months ago. The regional center said they expect our I-526 to get approved around this December. I heard that India investors are supposed to face the visa backlog this July. I am very worried that my daughter will age out because of the backlog. What options do we have?

Answers

• Julia Roussinova

  Immigration Attorney

  Answered on June 24, 2019

  It is possible that she may age out due to longer immigrant visa retrogression for Indian nationals. Any period I-526 petition is pending will be subtracted from her biological age under CSPA, but you must be able to file DS-260 or AOS after I-526 is approved to avoid the age-out issue. If an immigrant visa is unavailable, you will not be able to do that, which is likely the case. Alternatively, she needs to file as the principal EB-5 investor and also face processing times and retrogression unless the law is changed and derivatives are removed from EB-5 visa quote counts. She may also look for other immigration options.

• Lynne Feldman

  Immigration Attorney

  Answered on June 21, 2019

  You can protect her by filing for adjustment right away or an immigrant petition.

• Marko Issever

  EB-5 Broker Dealer

  Answered on June 18, 2019

  Unfortunately, you are right. It appears like your 20-year old daughter will most likely age out. As you must know, when you filed the I-526 petition back in October 2018 her age was frozen. But, once your petition is approved, her age will start accruing from where you left off in October 2018. Since by the time your I-526 is approved, it is almost definite that there will be retrogression for India-born applicants, she will have to wait. This waiting time will most likely be more than the 12 months or so you have so she will age out. What are your options? You could choose to transfer the investment to your daughter but then you will not be included in the application anymore. When she becomes a citizen, she could sponsor you if you are still interested by then and the administration does not get the proposed ban of chain immigration through Congress.

• BoBi Ahn

  Immigration Attorney

  Answered on June 18, 2019

  She most likely will age out by the time you would be eligible to file for the immigrant visa (since as Indian nationals you would be subject to a backlog). Your best option may be to have her file as the principal investor if that is financial possible.

• Phuong Le

  Immigration Attorney

  Answered on June 17, 2019

  According to the July 2019 Visa Bulletin, Indian EB-5 petitions are backlogged to May 1, 2017. Age out is obviously a real concern. Ironically, you may find yourself rooting for USCIS to take a long time to adjudicate your I-526 petition to freeze the age of your child as long as possible. Otherwise, if your daughter ages out, absent any other qualifications, you may have to file a completely new I-526 petition for her.

• Mitch Wexler

  Immigration Attorney

  Answered on June 17, 2019

  You want the I-526 to pend for a long time. You do not want a fast approval. Your daughter remains 20 years old while the I-526 is pending. When the I-526 is approved and if you are impacted by retrogression (your turn not reached), your daughter will begin to age again and likely "age out." Your ultimate strategy will depend on what your priority date is. You should be sure to strategize with an experienced immigration attorney.

• Belma Chinchoy

  Immigration Attorney

  Answered on June 17, 2019

  The backlog has been announced and it is possible your daughter may not be able to take advantage of your I-526 petition. You should discuss your options with your attorney and consider alternative immigration solutions for your daughter.

• Hassan Elkhalil

  Immigration Attorney

  Answered on June 17, 2019

  I do not see a concern, as your daughter was under 21 when the I-526 was filed. She will be covered under the Child Status Protection Act (CSPA).

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on June 17, 2019

  She will likely age out, and when you become permanent residents you can file an F-2B petition for her, but that also has a long waiting line. You can also transfer the investment to her and refile with her as the principal applicant, but the long waiting line has already emerged, so she will have to wait. Let's hope the bill that is circulating to address the Sept. 30 sunset date is enacted, since it may have a provision to remove derivatives from the count, thereby shortening the waiting line. Unfortunately, this is likely to be too late for your daughter.

• Salvatore Picataggio

  Immigration Attorney

  Answered on June 17, 2019

  The currently estimated shorter retrogression may keep her in, but if it balloons, then you may need to talk with an immigration attorney to discuss other options.

• Charles Foster

  Immigration Attorney

  Answered on June 17, 2019

  It is very likely that as an individual born in India, your daughter will age out because of the backlog. The time it took to have your I-526 petition would be subtracted from your daughter's age under the Child Status Protection Act. However, given the fact that the backlog under the EB-5 quota for India could be several years or even much longer, there is a risk that your daughter will age out. The only options would be for your daughter to qualify in her own name, through an independent EB-5 petition, employment or a bona fide family relation with a U.S. citizen, permanent resident, parents, spouse or adult child. At some point, you could petition for your daughter, but there will be at least a six-year or longer backlog, under the quota for Indian nationals.