When a prospective EB-5 petitioner files for an I-526 application for an EB-5 Visa, he/she will also be filing for their dependents, this includes their spouse and any children under the age of 21. Children over the age of 21 cannot be included as dependents in an I-526 petition. But what about children who will be 21 in the next couple of years?
Under the Child Status Protection Act (CSPA), a child’s age for the purposes of being included as a dependent in the case is determined by taking the child’s age at the time an immigrant visa number becomes available, and subtracting the amount of time the immigrant petition was pending (filing/priority date to approval date).
But, remember that once petition is approved, the clock starts again for the child’s age. So, if there is retrogression for the investor’s particular country (like China, Vietnam), till the Priority date of the petitioner becomes current, the age clock starts again.
So, for example, if a petitioner filed his/her I-526 when the child was exactly 20 years old, the child’s age of 20 is “frozen” till the petition is approved. Say, the petition is approved after 24 months, according to the CSPA, the child’s age in reality is 22 now, but as per the CSPA, the child’s age is still only 20 on the date of approval, so the petitioner can immediately apply for condition green card. But, in the case of Chinese investors and now Vietnam investors, their priority date is not current. So, they cannot apply for a green card, but the child’s age meter has started again, if it take more than 12 months to get a visa number, adding 12 months to the child’s “frozen” age of 20, will age out the child and now the parent cannot file for a conditional green card for the child.
This problem is not just related to China & Vietnam, as more countries inch towards retrogression, including India in 2019, this will become a big problem for investors going forward.
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