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?
CSPA ACT
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: Subtracting the amount of time the immigrant petition was pending (filing/priority date to approval date), from the child’s age at the time an immigrant visa number becomes available.
Example: Child is exactly 20 years at the time parent files the I-526. Let’s suppose, It takes 26 months for the I-526 to be approved, at which point the child’s biological age is 22 years & 2 months. But as per the act, the child’s CSPA age is still 20 years (I-526 processing time is subtracted from child’s age). Hence the child is eligible for a dependent visa.
File DS-260 or I-485 within a year
Once petition is approved. If the Visa category is current as per the Visa bulletin of that month, and the child’s CSPA age is below 21 years. The child is eligible for a green card as long as investor pays the Immigrant Visa fees and files the DS-260 within 1 year of I-526 approval. Or in the case of adjustment of status, investor files the I-485.
Final Action Date
But if the Final Action Date (FAD) is retrogressed for the investor’s country. The child’s CSPA age clock starts again from the date of I-526 approval till the FAD (in Visa bulletin) of the petitioner becomes current. The age clock keeps running.
So continuing the above example. If the FAD is not current, the child’s CSPA age clock starts again at 20 years after I-526 approval. Let’s say, the investor’s country becomes current after 14 months. Then the child’s parent will start the AOS/CP process to acquire the conditional green card. But since the child’s CSPA age is now 21 years & 2 months (20 yrs + 14 months retrogression). The child is not eligible for a green card as a dependent of the parent.
If you would like to evaluate your child’s CSPA age and if there is a risk of ageing out for your children. Contact us to learn more in detail about the CSPA act and whether there is a risk for your family.