When will our children qualify for resident tuition rates through EB-5?
We are seeking to apply to the EB-5 program. We have two high school-age children who we would like to have attend a U.S. university. We have heard that certain lower rates are available for U.S. residents. If we apply for EB-5, at what point in the process will our children qualify for these U.S. resident university tuition rates?
The rules for resident and non-resident tuition vary from state to state and from school to school. In most cases, foreign students will not be considered residents for tuition purposes unless they have received lawful permanent resident status or have resided in the state for a certain period of time.
After making a decision on a project and making your investment (several weeks or several months), you would prepare (several more weeks to months) and submit the I-526 petition (current processing time of more than 15 months). Then, your case is transferred to the National Visa Center for processing and arranging the interview at the U.S. consulate (several more months). You may be looking at two years between making the decision to move forward with EB-5 and actually obtaining your conditional green card.
Once approved on the United States' side and once you have completed consular processing, you become a Lawful Permanent Resident. This status would be accorded to you, your spouse, and your children. With respect to university education and whether you would qualify for reduced, in-state tuition rates, it depends on what state in the United States that you reside. Once you have secured Lawful Permanent Resident status through the EB-5 program, the question of residency is state-specific. For example, in the Commonwealth of Pennsylvania, residency for “in-state” tuition is noted as follows: "A student shall be classified as a Pennsylvania resident for tuition purposes if that student has a Pennsylvania domicile and that student's presence in Pennsylvania is not primarily for educational purposes. Domicile is a person's existing and intended fixed, permanent, and principal place of residence. A student whose presence in the Commonwealth is primarily for educational purposes shall be presumed to be a non-Pennsylvania resident for tuition purposes. Thus, most non-residents who come to Pennsylvania for the primary purpose of attending a University will ordinarily continue to be classified as non-residents for purposes of tuition throughout their attendance. The following are considerations that may be used by the University in determining whether a student is a resident for tuition purposes: 1. A student under the age of 21 is presumed to have the domicile of his/her parent(s) or legal guardian(s), unless the student has maintained continuous residence in the Commonwealth for other than educational purposes for a period of at least 12 months immediately prior to his/her initial enrollment, and, the student continues to maintain such separate residence. 2. A student who has resided in the Commonwealth for other than educational purposes for at least a period of 12 months immediately preceding his/her initial enrollment is presumed to have a Pennsylvania domicile. 3. A student who has not resided continually in Pennsylvania for a period of 12 months immediately preceding his/her initial enrollment is presumed to have a non-Pennsylvania domicile. 4. A student receiving a scholarship, guaranteed loan, grant, or other form of financial assistance dependent upon residence in a state other than Pennsylvania is not a Pennsylvania resident for tuition purposes."
Your children will be eligible to attend a U.S. university on payment of tuition applicable to all lawful permanent residents and citizens of the United States. Yes, tuition for foreign nationals is considerably higher. In the EB-5 process, you would make your investment and file an I-526 petition. About 15 months later your petition would be, hopefully, approved for an immigrant visa. If a visa is currently available, one would be sent to the U.S. embassy in your country. You, your spouse, and unmarried children under 18 years of age would then apply to receive the visa. After receiving the visa, all of you would enter the United States. At that point in time, your children would be eligible for domestic tuition and enter the university as U.S. lawful residents, conditional upon your investment creating 10 full-time positions. If the questioner is from China, even though the I-526 petition is approved, a visa may not be available for several years and the questioner should inquire further on the timing to affirm that domestic university tuition would be available to his or her children.
Once your children become conditional permanent residents they may attend the state school where they have established residency at in-state tuition rates. The residency requirements vary from state to state.
The dependents can get a green card along with the primary applicant once the application for the conditional green card is approved and the green card interview is done. The conditional green card is the same as an unconditional green card when it comes to being a resident of the United States. Therefore, once your children get a conditional green card, they will become residents of United States for all intents and purposes.
This varies from school to school and is a complex analysis. But yes, once the person is a green card holder, many states and schools will provide for in-state tuition. However, the UC system, for example, requires the I-526 to have been filed at least 366 days before, and the person can have another visa status, such as a pending adjustment or even L-1. The parents must also be state residents, if the child is dependent on them.
Generally, children who are included in the EB-5 application will qualify for U.S. resident university tuition rates only when they are granted conditional permanent residence. In essence, each child becomes eligible only when he or she obtains a green card. For further information on the application of this law on a state-by-state basis, consult an EB-5 attorney.
John J Downey
When you receive your conditional permanent resident status (green card).
Lower tuition is for the public, state, or city universities where you are residing after you receive your conditional green card which is after the I-526 is approved and you receive the immigrant visa after the interview at the embassy/consulate. If you wish to send your children to any elite private universities, such as Duke, The University of Chicago, Cornell, etc., you will be paying the full tuition as no one gets a lower rate in those schools.
You need to look at the law of the state in which you, the parents, will reside permanently. This is where your dependent child can obtain in-state tuition. For example, in Florida, the law can be found at Florida Statutes 1009.21. In Florida, qualification for in-state tuition can only occur if the parents are domiciled in the state for 12 consecutive months.