My I-526 application was filed when my daughter was 20 years old. Due to delays in I-526 processing, she will be older than 21 when the application is approved and she is currently engaged to be married. What changes of status would make my child ineligible for U.S. permanent residency under the EB-5 visa program?
The general rule is that as long as your child is in included in the I-526 application, the child will be treated as a beneficiary, and even if the child turns 21 years of age later, the child will be able to obtain green card.
Generally, an unmarried child under 21 at the time of filing of I-526 would be eligible for CSPA protections due to processing delays. If your daughter gets married, she no longer qualifies as your child and may not immigrate with you as a derivative.
The I-526 petition has to be approved first then you can apply for conditional permanent residency. The I-526 portion has to be filed before the child turns 21 years old.
Your child''s status, and whether or not she will be included as a dependent in your I-526 case, depends upon the provisions of the Child Status Protection Act (CSPA). As long as EB-5 visa numbers do not regress, the analysis is fairly simple. You take your daughter''s age on the date you submitted the I-526 petition (an immigrant visa number was immediately available at that time) and you subtract the amount of time the I-526 petition was pending (filing date to approval date). Since she already was under 21 when you filed the I-526 petition, her "CSPA age" will remain under 21 and she will continue to be your dependent for this EB-5 case even after she actually turns 21.
She is okay now because she was under 21 when you filed the I-526. But once she is married, she is no longer your immediate family member (derivative) and will not be eligible for a green card through your EB-5. You need to be careful here.
The Child Status Protection Act freezes the child''s age at when I-526 was filed; in your daughter''s situation, at 20. When I-526 is approved, the clock starts ticking again, but as long as your immigrant visa application (DS-260) with her as your derivative is filed within of year of I-526 approval, her age status is protected. However, when she gets married before the immigrant visa is approved, then she no longer qualifies as your derivative child for the requirement of immediate family is spouse and unmarried children under 21. All this should have been explained to you by your attorney who helped you with the I-526 filing.
As long as you FILED the I-526 petition before your child turned 21, she is still eligible. Her marriage may complicate things, but I would discuss the full situation with a U.S. immigration attorney to develop a strategy.
Getting married for sure. Turning 21 would be evaluated under the rules of the Child Status Protection Act.
Turning 21 may or may not age her out, if she falls under the Child Status Protection Act. Marriage will disqualify her from being a derivative beneficiary.
