When is the child of an EB-5 investor too old to be included as a derivative beneficiary?
The regulations of the EB-5 program stipulate that for a dependent child to be included as a derivative beneficiary on the EB-5 investor’s application, they must be unmarried and under the age of 21 at the time Form I-526 is filed.
Under the Child Status Protection Act (CSPA), the derivative child’s age is effectively frozen once Form I-526 is filed, and remains frozen during the adjudication process. If a child turns 21 while the I-526 petition is still pending, they will most likely still be eligible to receive a conditional U.S. green card and EB-5 visa.
Once the I-526 petition has been approved, the derivative child must seek to acquire permanent residence within one year of the approval date and visa availability.
And once the EB-5 investor’s priority date is current on the Final Action Date Chart from the Visa Bulletin, the investor should take action to either adjust status or file Form DS-260 for consular processing on behalf of their derivative child. This effectively “locks in” the derivative child’s age.
Visa Retrogression and Aging Out
However, EB-5 investors from Mainland-China and Hong Kong should be mindful that visa retrogression may pose challenges when it comes to the issue of derivative children potentially aging out. While retrogression does not affect Chinese or Hong Kong investors’ ability to file Form I-526 and be granted approval, it does cause significant delays in the issuance and availability of visas.
Because EB-5 investors from China and Hong Kong are subject to final action dates and must wait until their I-526 priority date aligns with their designated final action date, there is a risk of derivative children aging out during this waiting period, after Form I-526 is approved.
If an EB-5 investor from China or Hong Kong feels there is risk of their derivative child aging out during the EB-5 process, it is better to begin the process and file Form I-526 as early as they can. This is applicable to foreign nationals and prospective investors from all countries; applying sooner will mitigate the chances of any derivative children potentially aging out and becoming disqualified from immigrating with the primary applicant.
