USCIS Updates Policy on Child Status Protection Act for EB-5 Dependents

USCIS has recently updated its policy regarding the aging-out of dependents of EB-5 visa applicants.

USCIS Policy Update

The new interpretation by USCIS of the Child Status Protection Act (CSPA) can provide relief to families who have been impacted by the long waiting periods for the processing of EB-5 visa applications. This policy change could help keep families together and provide greater certainty and predictability in the EB-5 Immigrant Investor Program.

Under the new policy, USCIS can utilize the “Dates for Filing” chart from the Visa Bulletin, instead of the “Final Action Date” chart, to establish eligibility for filing Form I-485. The I-485 petition is used by EB-5 investors to adjust their immigration status after filing Form I-526E.

Since dates for filing are usually months or years ahead of final action dates, this means that more dependents will now be eligible to adjust their immigration status through Form I-485.

(See this article for an explanation of how final action dates and dates for filing determine eligibility for EB-5 investors.)

This update provides relief to families impacted by aging out. Under the new policy, if a dependent child ages out before their I-526E petition is approved, they may still be able to obtain an EB-5 visa as a dependent of their parents, even if they are over the age of 21.

What is Aging Out?

Aging out occurs when a dependent child of an EB-5 visa applicant reaches the age of 21 before their visa application is processed. This can be an inconvenient situation for families, as it can result in the loss of the dependent’s opportunity to immigrate to the United States.

Previously, if a dependent child aged out before their visa application was processed, they would no longer be eligible for a visa as a dependent of their parents.

Eligibility

To be eligible for the new USCIS policy, the child must meet certain requirements. The child must have been included in their parent’s EB-5 visa application before they turned 21. Additionally, the child must not be married at the time of their parent’s visa approval.

Impact of the USCIS Policy Update

The USCIS policy update is a welcome relief for families impacted by aging out. It provides greater certainty and predictability in the EB-5 program and helps to keep families together.

What is the EB-5 Immigrant Investor Program?

The EB-5 Immigrant Investor Program is a United States visa program that provides permanent residency to foreign investors who make a capital investment in new commercial enterprises (NCEs) that create jobs for U.S. workers. The program requires a minimum investment of $1.05 million in a commercial enterprise, or $800,000 in a targeted employment area (TEA).

The EB-5 program has become increasingly popular over the years, with more and more foreign investors seeking to participate. However, due to the high demand and limited availability of visas, the waiting periods for the processing of EB-5 visa applications have become quite long, sometimes stretching up to several years.

Direct and Regional Center Program Investments

There are two options to choose from when making an EB-5 investment: Direct investment, or the regional center program.

The direct EB-5 program requires the investor to make a direct investment in a new commercial enterprise, such as a real estate development project, without using a 3rd party to manage their investment.

The regional center program, on the other hand, allows investors to pool their funds together into a USCIS-designated regional center, which then invests the funds into a qualifying project.

The EB-5 Regional Center Program is commonly regarded as the more convenient of the two capital investment models. This is mainly because investors can apply more flexible criteria to meet the job creation requirements.

Avoid Further Delays

In March 2022, the EB-5 Reform and Integrity Act (RIA) was enacted, which established three visa set-aside categories: rural TEA projects, high-unemployment TEA projects, and infrastructure projects. Investors who participate in one of these categories before the set-aside visa supply is depleted will be eligible for a reserved visa, regardless of their country’s EB-5 application backlog, and will not be subject to cutoff dates.

Investors in rural TEAs, high-unemployment TEAs, and public infrastructure projects enjoy priority processing from USCIS. This is because 32% of the total EB-5 visa pool is reserved for these project categories; with 20% allocated for rural TEAs, 10% for high-unemployment TEAs, and 2% for public infrastructure projects. As a result, these investors are likely to immigrate to the United States much more quickly if their countries have a backlog of EB-5 applications.

Currently, both China and India have a backlog of EB-5 applications.

Next Steps

The USCIS policy update regarding the aging out of dependents of EB-5 visa applicants is a positive step forward for the program. It provides relief to families impacted by the long waiting periods for processing.

Additionally, the RIA’s set-aside visa categories make the EB-5 investor program even more efficient for those investing in rural TEAs, high-unemployment TEAs, and public infrastructure projects.

Although the program has experienced some great steps forward in recent months, the process can still be complex, and as popularity grows the program is experiencing significant backlogs and processing delays. Using a regional center can help make your investment process quicker and, far more low maintenance.

Learn more by contacting EB5AN to schedule a free consultation today.