One of the benefits of the EB-5 Program for investors is being able to obtain a green card for not only themselves but also their spouse and unmarried children under the age of 21. However, due to visa retrogression, especially with Mainland China applicants, many investors are worried their children will age out of the EB-5 Program.
What is retrogression?
Retrogression occurs when the State Department issues a cutoff date to the visa list because there are more visa applicants than there are visas available that year. This means applicants have to wait longer to have their EB-5 visa applications processed. This worries investors whose children will age out of the EB-5 Program, meaning they'll turn 21 or older during the EB-5 process due to the retrogression.
What should EB-5 investors do if they're concerned their children will age out of the EB-5 Program? Are their steps EB-5 investors can take to lock in their children's age to ensure they'll receive visas and green cards?
One solution that was created by Congress to help tackle the issue of children "aging out" of the EB-5 process due to delay of adjudication immigration. This solution is called CSPA or Child Status Protection Act. What CSPA does is it counts the age of the child at the time when the EB-5 I-526 Petition is filed. Therefore, EB-5 investors can subtract the time the I-526 Petition was pending from the child's age so they are not penalized for that. This was an effective solution prior to the visa backlog.
- Investors must file their I-526 Petition before the child turns 21. By filing their I-526 Petitions to USCIS they will create a Priority Date. When the I-526 Petition is approved, move on to the next step in the process, which includes the DS-260 and acquiring permanent residence.
- As soon as the DS-260 application for visa becomes available, it's important to file it with the National Visa Center (NVC) and pay the invoice associated with it.
Children can still age out of the EB-5 Program even if the I-526 Petition is approved if there are no visas available due to a backlog.
If a child is close to turning 21 by the time the I-526 Petition is filed and there is a visa backlog, that child may age out of the Program before visas become available again. There's is a current backlog for Mainland China born applicants.
It is possible, but unlikely that the I-526 Petition will be pending long enough for the EB-5 backlog to clear. It's unlikely because the I-526 Petition does not typically take more than 12 months, but the backlog may take years.
The best solution is to file the EB-5 visa application many years before the investor's children turn 21 to avoid "aging out." If a child has aged out, the only other answer may be to have them file their own EB-5 application, but they must be prepared to possibly wait a few years for the backlog to clear.