Under the current EB-5 program, an EB-5 investor’s spouse and any unmarried children under the age of 21 may be admitted to the U.S. along with the EB-5 immigrant investor. If the investor’s I-829 petition to remove conditions is approved, then the conditions will also be removed for the spouse and children. However, at what point must the child be under 21 years of age? Is it at the time the parent initially files his or her I-526 petition? At the time of I-526 approval? Or is it even later at the I-829 stage? To fully answer the question we must begin by looking at the Child Status Protective Act (CSPA).
The CSPA, enacted in 2002, provides for the continued classification of certain children in cases where they “age out” (i.e. turn 21 years of age) while awaiting processing. Prior to the Act, a child had to remain under the age of 21 up to and including the date that the final benefit was granted.
Regarding children of EB-5 immigrant investors, age is determined by using the following formula: the number of days during which the parent’s petition was pending is subtracted from the child’s age on the date an immigrant visa becomes available to the parent. If under this formula the child’s age is determined to be less than 21 years, he or she is eligible for “age out” protection.
Hypothetical Case: A child is 22 years old at the time an immigrant visa becomes available to his or her EB-5 immigrant investor parent and the parent’s I-526 petition was pending for 18 months.
Analysis: In the above hypothetical, the child’s age for purposes of the “age out” provision is 20 years and six months. Therefore, the above hypothetical child would be eligible for “age out” protection tadalafil generique.
Historically, the EB-5 visa category has been current (i.e. no retrogression), and therefore has not needed to make use of the formula listed above. The only relevant date has been the filing date of the I-526 petition. If a child is under 21 years of age at the time his or her parent files their I-526 petition, then the child is eligible for “age out” protection.
If, however, retrogression occurs and backlogs develop, the more complex formula described above will become the norm for calculating the age of children of EB-5 immigrant investors.
NOTE 1: The child must “seek to acquire” permanent residence within one year of a visa becoming available. USCIS interprets “seek to acquire” as having a Form I-824, Application for Action on an Approved Application or Petition, filed on the child’s behalf or the filing of a Form I-485, Application to Register Permanent Residence or Adjust Status, or submit Form DS-230, Application for Immigrant Visa and Alien Registration from the Department of State. For more information please visit the official Child Status Protective Act page on the USCIS website.
NOTE 2: The date of visa availability means the first day of the first month a visa in the appropriate category was listed as available in the Department of State’s visa bulletin or the date the visa petition was approved, whichever is later. For more information please visit the official Child Status Protective Act page on the USCIS website.
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