What Happens with Children Aging Out as EB-5 Investor Visa Dependents?

The EB-5 program, an ideal pathway to US permanent residency for foreign families, is celebrated for its many benefits—most notably, its ability through a single application to grant green cards to investors’ spouses and children under age 21. Despite this benefit, applicants can encounter the problem of visa retrogression, which concerns the eligibility of dependent children as they approach age 21.

UnderstandingVisa Retrogression

Visa retrogression occurs when the demand for EB-5 visas exceeds the annual limit set by US law, which, for the EB-5 program, is 10,000 visas per year. To manage this demand, a per-country cap restricts each country to 7% of total visas, about 700 visas annually. When applicants from any one country exceed this quota, the Department of State enforces a cutoff date, putting applicants from high-demand countries like China at greater risk of being waitlisted.

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Applicants whose Form I-526(E) filing date precedes this cutoff date can proceed with their green card applications, whereas those with later filing dates must wait, potentially for years, until new visas become available.

This situation raises concerns for EB-5 investors whose dependent children are nearing the critical age of 21, prompting questions about measures to prevent these children from “aging out” of the program and losing their eligibility for green card status.

Aging-Out Prevention Strategies

To address this challenge, the US Congress enacted provisions within the Reform and Integrity Act of 2022 (RIA). The new legislation allows consideration of the age of the child as of the I-526(E) petition filing date, effectively pausing the age clock and protecting the child’s eligibility despite potential delays in visa availability. This significant reform to the RIA makes the EB-5 visa even more attractive to investors looking to bring their families with them to the United States. To benefit from this measure, the I-526(E) petition must be filed before the child turns 21. In theory, the Child Status Protection Act already enables this treatment, but EB-5 visa applicants are likely to be reassured by its being clearly stated in the EB-5 reform law. Upon approval of the I-526(E), the process can advance to the next stages, securing the child’s place within the program.

However, individual circumstances can vary, and in some cases, mitigating factors may still lead to a child aging out. Early filing of the EB-5 application, long before the child nears age 21, remains the most straightforward strategy to mitigate this risk.

Conclusion

The EB-5 Investor Visa Program is a direct route to the US green card, allowing full family migration with a single investment. The petition for the visa is made in the name of one person, the applicant, who can include (or not) their spouse and single children up to 21 years old. Many parents apply for EB-5 in the interest of providing more opportunities for their children’s futures.

If, however, you have a son or daughter who is over 21 years old and cannot be included in your EB-5 application, it is possible to make a loan or donation to your child so they can be the main applicant on the EB-5 petition.

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There are many ways to satisfy your family’s specific needs. Speaking with specialists will provide a solution tailored to your family.

Please contact us today and schedule a free consultation with one of our experts.

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