Some Examples
Scenario 1- priority date current
1-Child derivative’s date of birth: September 2, 1992
2-Date petition filed (the “priority date”): August 1, 2013
3-Date Form I-526 (Petition for Alien Entrepreneur) was
approved: March 2, 2014
4-Time Form I-526 was pending: 213 days
5-Date the priority date became current (by looking at the
Department of State Visa Bulletin): Always current
6-Date the visa became available (later of either #3 or #5):
March 2, 2014 (date of I-526 approval)
7-Actual age of child derivative on date visa became
available: 21 years, 6 months
8-CSPA age (#7 minus #4): 20 years, 332 days
Scenario 2- visa backlog
1-Child derivative’s date of birth: September 2, 1992
2-Priority date: August 1, 2013
3-Date Form I-526 (Petition for Alien Entrepreneur)
was approved: March 2, 2014
4-Time Form I-526 was pending: 213 days
5-Date the priority date became current: August 13, 2014
6-Date the visa became available (later of either #3 or #5):
August 13, 2014
7-Age of child derivative on date visa became available:
21 years, 11 months, 11 days
8-CSPA age: 21 years, 4 months, 13 days.
Child has aged-out.
As the above examples illustrate, for Chinese EB-5 petitioners
with unmarried children who are nearing the age of 21, and
for whom derivative benefits are sought, it will be important
to track the child derivative’s birthday and to carefully monitor
any EB-5 backlogs for China, because a lengthy backlog may
mean the child-derivative will lose eligibility. Moreover, for
representatives of EB-5 petitioners, this may also involve legal
tactics to prolong the period of I-526 adjudication to close the
gap between the adjudication period and the time the visa becomes available. This will increase the likelihood that the child
derivative’s age at the time of visa availability is under 21 for
CSPA purposes.
Finally, keep in mind that while the child derivative’s age is
vitally important, the child derivative must also remain unmarried, or the child will lose child derivative designation under
the INA and all these protective measures would be abandoned.
CONCLUSION
EB-5 petitioners with unmarried child derivatives who are
near the age of 21 should follow these guidelines for determining eligibility, and carefully monitor updates on EB-5 retrogression while notifying their legal representative of the age of any
children over 19.
★
Bernard P. Wolfsdorf is past President of AILA and Managing Partner of an
18-lawyer immigration firm with New York and Los Angeles offices. He was voted
“Immigration Lawyer of the Year” in 2013, 2012, 2011 and 2010 by International
Who’s Who Legal, the official research partner of the ABA and the IBA. He filed
his first EB-5 case in 1993, serves on AILA’s EB-5 committee and has over 20 years
of experience assisting EB-5 immigrants. Email: [email protected]
A USCIS Approved EB-5 Regional Center
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