Questions & Answers

When is the eligibility of dependent children determined in EB-5 cases?

According to USCIS, the maximum age of dependent children in EB-5 cases is 21 years old. However, when is the eligibility determined? Is it upon the filing of I-526 or at the time when the dependent gets an unconditional green card?

Answers

• Dale Schwartz

  Immigration Attorney

  Answered on June 14, 2019

  At the time they apply for a green card. Under the Child Status Protection Act, you can take the amount of time it takes the USCIS to approve your EB-5 case after you file it (usually one to two years) and subtract that time from your child's age when the EB-5 is approved. So, if your child was 22 years old when the EB-5 is approved and it took two years to get the approval, then you can subtract the two years from your 22-year-old child's age, and the child would be considered to be 20 and could get a green card with you.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on June 13, 2019

  When the I-526 petition is approved, one can freeze the child's age if there is no waiting line and the visa number is current under the Chart A or final action date. You can deduct the time the I-526 was pending from the child's age so effectively it's the age at the time of filing.

• Julia Roussinova

  Immigration Attorney

  Answered on June 12, 2019

  To be included in the principal EB-5 investor's I-526 petition, a child must be under age 21 and unmarried. Under the Child Status Protection Act (CSPA), a child's biological age is frozen while I-526 petition is pending with USCIS. I-485 or DS-260 must be timely filed for a child once I-526 is approved. Your immigration attorney should be able to do CSPA computation. If you are from a country subject to immigrant visa retrogression, a child may age out and be ineligible to immigrate with the principal as a derivative.

• Sally Amirghahari

  Immigration Attorney

  Answered on June 11, 2019

  At the time when the I-526 is being filed.

• Mitch Wexler

  Immigration Attorney

  Answered on June 11, 2019

  It is a bit more complicated than that if the principal applicant was born in a country that has retrogressed. The age of children "freezes" upon filing the I-526 petition and remains frozen for the duration of the time the I-526 is pending up to the date it is approved. If at that time your turn is not "current" on the Visa Bulletin. their age effectively defrosts and they resume aging from their age when the petition was filed. If their immigration age turns 21 during retrogression, they have aged out. This determination can be complex so you should confirm its application with experienced immigration counsel.

• Marko Issever

  EB-5 Broker Dealer

  Answered on June 11, 2019

  When you apply for EB-5 by filing the I-526 petition, the age of your dependent children is frozen. So, in general, if they are less than 21 years old they should be OK. Once your I-526 application is approved, though, their age is unfrozen. If you cannot file for AOS (adjustment of status) at that time due to potential retrogression issues, then there is always the danger that they might age out.

• Lynne Feldman

  Immigration Attorney

  Answered on June 11, 2019

  There is a formula under the Child Status Protection Act. If the child is under 21 when the I-526 is filed, this effectively freezes the age for the number of months the I-526 is pending and then there are rules on when the minor must seek to acquire PR status to continue to be covered under CSPA.

• BoBi Ahn

  Immigration Attorney

  Answered on June 11, 2019

  At the time of filing EB-5 petition, the dependent children must be under 21 to be included. The Child Status Protection Act (CSPA) also protects kids from aging out if subject to country backlogs.

• Charles Foster

  Immigration Attorney

  Answered on June 11, 2019

  The eligibility of a dependent child is determined upon the filing date of the EB-5 investor petition on Form I-526. The time it takes USCIS to adjudicate that petition suspends and does not count toward the child accruing additional days toward his 21st birthday. However, upon approval of the petition, the child again will begin accruing days toward his 21st birthday, and it would be important to immediately file for adjustment of status for his immigrant visa. Nevertheless, if there is a backlog under the quota, and the child cannot file to adjust status for his immigrant visa, this could be a serious problem because the child could age out and would not be saved by the Child Status Protection Act.

• Hassan Elkhalil

  Immigration Attorney

  Answered on June 11, 2019

  Your question is not clear. But the children should be under 21 when you file the I-526.

• Salvatore Picataggio

  Immigration Attorney

  Answered on June 11, 2019

  Upon filing of the I-526, but kids from those countries who are subject to long wait times for the green card may not be able to complete the process if the I-526 is filed too close to their 21st birthday.