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Concern for Children Aging-Out Of EB-5 Programs

The EB-5 program has many benefits for its investors. One of the more popular benefits, is the ability to gain green cards for the investor’s dependent family members.

This includes the investor, their spouse and any unmarried children who are below the age of 21 at the time of filing the application. However, visa retrogression may pose a problem for children aging out of the program from countries like China.

Visa Retrogression

U.S. law sets annual limits on how many green cards can be issued in any given category. The EB-5 investment visa program is provided with 10,000 visas every U.S. fiscal year (from October 1 to September 30 of the following year). Once the Department of State expects to issue all of the available EB-5 visas, due to strong global demand, in a single fiscal year, a per-country limit is instituted whereby each country can only get 7% of the visas (i.e. 700 visas per year).

When there are more applicants from a certain country, than available visas, the government establishes a cut-off date for that particular country (which is published monthly). Every applicant whose I-526 filing date (aka Priority Date) appears before the established cut-off date is eligible to apply for and receive green cards.

If an investor’s Priority Date, however, occurs after the visa-cut off date, they are not eligible to receive their green cards and must wait until their Priority Date is current.

The State Department must apply a cut off date, leaving applicants on the waiting list. These applicants must wait until enough visas are available to continue the process. The wait time could be extensive. This makes a number of parents concerned that their children may reach the age of 21 before the process is complete.

The question that many EB-5 investors want addressed is whether there is some way to prevent their children from aging out of the program?

The following will offer a number of solutions to help children receive their green cards without aging out of the program.

Aging out prevention measures

The US Congress provided a number of solutions on how to handle the problem of children affected by the visa retrogression issue. Through the Child Status Protection Act (CSPA), solutions were made to help resolve the problem. The CSPA decided to count the ae of the child at the time of the I-526 filing. This means that the EB-5 investor and their family members will not be affected or further penalized. This one solution alone was shown to be highly successful in eliminating the problems that faced a number of EB-5 investors.

For investors to be eligible for this solution, the I-526 needs to be filed prior to their child’s 21st birthday. Once the petition is filed, the USCIS will provide a priority date. Finally, when the I-526 has gained approval, the rest of the process can take place.

However, it is essential to note that each case is different, and there could be mitigating circumstances that may result in children aging out of the program. Perhaps the best way to prevent the long wait is to file the EB-5 visa application long before the possibility for children to age out of the program.

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