What should we do if my dependent child ages out due to the backlog for Indian investors?
I applied for EB-5 in November 2018 with my 20-year-old child as the dependent. The backlog for Indian investors is getting worse. Will my child get a green card or will he age out? What are our options?
You need to evaluate this issue within the context of the CSPA law which by applications would have frozen the age of your child when the I-526 was filed. Upon approval though, you must file your DS-260 within two years after the approval of the I-526. Advisably, consult an EB-5 attorney for proper monitoring and calculation of steps that should be taken.
Unless Congress takes action to address the backlog, your child may indeed age out. I recommend you consult with your investment immigration attorney on this question and the best actions for your child to take.
It is hard to tell whether your son will age-out, but it could happen. The way the priority date has been advancing for India-born applicants has been very encouraging so far. The November Visa bulletin was just published with a Final Action Date of Dec. 8, 2017. For October, USCIS said that the dates of filing option should be used. The October dates of filing chart showed India as current. Furthermore, ever since retrogression was announced for India, the final action date has been moving closer every month, by at least a month, and at times faster. That is also a good sign. Once your I-526 petition is approved, and your son''s age will be unfrozen, the days will start accruing toward a potential "ageout". Needless to say, if you want to play it safe, and you can afford it, he could file another petition as the principal EB-5 applicant now. He would receive a green card, potentially, a year after you in that scenario. If he acts fast, he could get processed at the $500,000 level before the new regulations go into effect. If you cannot afford to gift him the required funds to finance another EB5 investment, then you could evaluate the situation, if and when he "ages out". It is difficult to give concrete advice as to what to do from now because currently, the other immigration routes such as EB-2 and EB-3 through company sponsorship both have much more severe retrogression for India-born applicants. That said, he could always get a job under H-1B, work for a few years with that, and weigh his options in a few years.
Your child could clearly age out, depending on how long it takes for USCIS to adjudicate your I-526 petition. That time can be subtracted from his age under the Child Status Protection Act. You could also invest in the name of your child or file two petitions.
There is some possibility based on recent estimates. One option may be to switch the investment and refile immediately with your son as the principal applicant. Another is to support Sen. Durbin's new bill that freezes the age upon filing.