An EB-5 applicant can include any unmarried child under the age of 21 on their I-526E petition. In fact, children are often a motivating factor for why many pursue a green card through EB-5.
Thank you for reading this post, don't forget to subscribe!However, as a child approaches the age of 21 things can get tricky. A child that turns 21 while awaiting adjudication of an I-526E petition or the receipt of a green card may be deemed to have “aged out”. Aging out can have significant consequences.
A child that has aged out may lose eligibility for the derivative green card that would otherwise be issued with the parent. This can be problematic because they may need to apply for a separate immigrant visa or green card independently, potentially delaying their ability to obtain permanent residency in the U.S.
Exception: Child Status Protection Act (CSPA)
The Child Status Protection Act (CSPA) was designed to prevent children from “aging out” of certain immigration benefits, including family-based and employment-based green card petitions, when they turn 21 during the processing of their immigration petition. It provides a way to “freeze” a child’s age for immigration purposes, allowing them to remain eligible for derivative status (such as being included on a parent’s EB-5 petition) even after they reach 21.
The CSPA allows the child’s age to be “protected” and treated as if they were still under 21, even after they turn 21, under certain conditions. This is important because under U.S. immigration law, a child must be under 21 to be considered a derivative beneficiary on their parent’s immigration petition.
The CSPA uses a formula to determine the child’s “protected” age. The child’s actual age is reduced by the number of days the immigrant petition (such as the I-526E for EB-5) was pending between the time it was filed and the time it was approved. Here is the formula:
- CSPA Age = Child’s Actual Age – Time Petition Was Pending (in days).
Impact of Visa Availability on CSPA
While the CSPA freezes a child’s age while the I-526E petition is pending. Once the petition is approved the child’s age unfreezes. If there is a visa available when the I-526E petition is approved, then the derivative child likely will not have any issues.
However, if a visa is not available after the I-526E is approved then the clock starts ticking again. If a child reaches 21 before a visa is available, then they age out and are not eligible to receive a green card as a derivative. For example, if a child is exactly 20 years old when the I-526E petition is filed that child will have a year after the I-526 petition is approved to receive their visa before they age out.
Strategies to Avoid Aging Out
To avoid a child aging out, families should consider:
- Filing as soon as possible. The sooner an investor files the I-526E petition, the more time your child must remain under the age of 21. The clock for aging out starts ticking from the filing of the EB-5 petition, and the sooner it is submitted, the better.
- Checking the visa bulletin. Closely follow the visa bulletin for updates on priority date availability in the EB-5 category. Retrogression can delay visa processing and affect when a visa becomes available for a derivative beneficiary.
- Utilizing concurrent filing to adjust status. If the child is in the U.S. and is eligible to apply for Adjustment of Status (Form I-485), doing so as early as possible after I-526E approval can help avoid aging out. Once the I-526 petition is approved and a visa is available (based on the priority date), the child can apply for a green card via adjustment of status. The date of the I-485 filing may help in securing the child’s eligibility as a derivative.
The above article is intended for informational purposes only and is not based upon any specific set of facts. Anyone with specific questions or issues concerning EB-5 or H1-B should consult an immigration attorney.
