The regulations of the EB-5 visa program stipulate that, to be included in the principal EB-5 investor’s I-526 petition, any derivative children must be unmarried and under the age of 21 at the time Form I-526 is filed. While the I-526 petition is pending, the derivative child’s age is effectively frozen until approval is granted.
There is a risk of aging out if there is no visa available immediately after the approval of Form I-526, though this phenomena currently only affects Mainland-born Chinese nationals and Hong Kong investors, who are contending against visa retrogression.
Generally, once the derivative child has been granted a conditional green card, their age is irrelevant and they will be able to remove conditions on their permanent resident status once the EB-5 investor has received approval of Form I-829.
Child Status Protection Act (CSPA)
Congress authorized the Child Status Protection Act (CSPA) in 2002 to help the derivative children of foreign nationals remain eligible for certain benefits and preserve their age for immigration purposes.
The Act was enacted due to the delays of United States Citizenship and Immigration Services (USCIS) in processing and adjudicating EB-5 petitions. Under CSPA regulation, the age of derivative children freezes at the time the EB-5 investor files Form I-526. Upon approval of the I-526 petition, the derivative child’s CSPA age then unfreezes, after which they must acquire conditional permanent residence within one year of an EB-5 visa becoming available.
Under the CSPA, a derivative child can continue to be lawfully classified as a child even beyond their 21st birthday in accordance with the definition supplied by the Immigration and Nationality Act (INA) while the primary EB5 investor’s I-526 petition is still pending.