We are waiting for our approved I-526 to be transferred to the national visa center. Our oldest daughter will be 20 years old this June. Since we are not from one of the countries that are subject to visa backlogs, we think our immigrant visas should be issued in time for us to enter the U.S prior to the 21st birthday of her. However, if the immigrant visa is not issued before August 2019, she may seek to enter the U.S on a student visa to attend college for the Fall 2019 term. In such a case, she will need to apply for I-485. What happens if she has already turned 21 years old when she submits I-485? Will she still be eligible for conditional permanent residency?
Your daughter's continuing eligibility will depend upon whether she can be considered a dependent under the Child Status Protection Act (CSPA). The CSPA provisions are fairly complex and require knowledge and experience of immigration law. You should contact an immigration attorney experienced in EB-5 matters to advise you of your daughter's situation and how to protect her eligibility.
CSPA allows you to subtract time while I-526 petition was pending from your daughter's biological age. She must file DS-260 or I-485 as soon as possible to avoid age-out concerns. Your immigration attorney should be able to guide you on CSPA calculation and submission of DS-260. Safest option would be to file DS-260s for entire family and consular process at the same time.
Back when you filed the I-526 petition, her age was frozen. Since you are not from one of the retrogression countries, now that your I-526 is approved, she can go ahead and file DS-260. Once this petition is filed, while she is waiting for its approval, there is no more aging out concerns. Her biological age does not matter anymore.
It is possible if your daughter has already turned 21 before she applies for adjustment of status on Form I-485 that she will no longer be included as your dependent based upon the fact that an immigrant visa was issued based upon your approved EB-5 petition. Remember, under the Child-Student Protection Act, you can subtract the time from your daughter's age that the EB-5 petition was pending. It may be in her interest, in fact, to travel abroad and apply for an immigrant visa with you in order to speed up the process, and in order to obtain her conditional lawful permanent residency sooner.
Her age is protected at the time she files the I-526 petition. If she was 18 or 19, and is not subject to a backlog, she can turn 21 later and still complete the process.
CSPA only allows the time an I-526 petition was pending to be subtracted from the beneficiary's biological age at the time a visa becomes available, so the beneficiary is not penalized for the time the petition was pending with USCIS. Nevertheless, even with the allowed subtraction of time, this could result in some children "aging out" if an I-526 petition is approved but there are no EB-5 visas available.
She must file for adjustment before she turns 21. She should file DS-260 with you and fly home to attend the interview.
The Child Status Protection Act allows you to deduct the time the petition was pending from her age, provided you are not from a backlogged country. It would be smart to pay the fee bill and file her DS-260 as soon as possible after the petition is approved, as that will "freeze" her age. Then you do not need to worry about her aging out.
She will probably still be eligible to adjust status under the Child Status Protection Act, depending on how many months the I-526 was pending.
Her age freezes while the I-526 was pending, so she will probably be OK.
The Child Status Protection Act actually allows you to subtract the amount of time that the I-526 was pending with USCIS from her biological age when determining if she has aged out or not. This may allow her to qualify for the conditional green card even if her biological age is more than 21 years old.
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