How might a parent who shares custody of a child include the child as a derivative beneficiary on an EB-5 application?

In order for an EB-5 investor to obtain a visa for a child from a previous marriage in which they and the other parent share custody, it is likely that they will have to obtain consent from the other parent. In addition, the investor must ensure that the child meets the requirements to be considered a derivative beneficiary of the main EB-5 applicant—the investor.

Derivative Visa Applicants

A derivative visa applicant is either the spouse or child of the principal visa applicant. In the case of the EB-5 visa, the principal applicant is the investor. A child qualifies as a derivative visa applicant if they are unmarried and under the age of 21. It is possible for derivative visa applicants to “age out” of the process, meaning that they are older than age 21 at the time the I-526 petition is adjudicated. In this event, the child—now an adult—would need to begin their own visa process as an individual. Alternatively, the principal EB5 applicant can sponsor their child for a green card once they become a U.S. citizen.

Child Status Protection Act

There is a way to prevent an EB-5 investor’s child from “aging out” of the EB-5 investment visa process. The Child Status Protection Act (CSPA) was enacted by congress in 2022. Congress recognized that United States Citizenship and Immigration Services (USCIS) had backlogs that were causing the children of EB-5 visa applicants, as well as other visas, to age out of the immigration process. The CSPA was enacted as a means to avoid that. Essentially, a minor child’s age “freezes” on the date that Form I-526 is filed. This may prevent the child from aging out of the EB-5 visa process if the I-526 petition was filed before they turned 21. Furthermore, the child must remain unmarried to qualify.

Due to the complexity of the EB5 program, especially when an applicant intends to immigrate with their family, investors are advised to retain experienced immigration attorneys.