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a year to approve Mr. Zhong’s I-526 petition. In that case,
the backlog in EB-5 visa number availability won’t affect Mr.
Zhong’s son, since the visa backlog time is less than the USCIS
adjudication time. Mr. Zhong’s son will be able to immigrate
with his father, even though he will be over 21 when they have
their visa interview in Guangzhou.
If the EB-5 backlog is greater than the time it takes USCIS
to adjudicate the I-526 petition, however, the CSPA only allows
the time an I-526 petition was pending to be subtracted from the
child’s biological age at the time an EB-5 visa becomes available.
For example, like above, assume Mr. Zhong files his I-526
petition on August 1, 2015, and that his son is 20 at the time.
But instead of the nine-month backlog postulated above, now
assume the EB-5 visa backlog in August 2015 is two years—
closer to the State Department’s actual prediction—and that
it takes USCIS a year to approve Mr. Zhong’s I-526 petition.
Here, the backlog in EB-5 visa numbers will affect Mr. Zhong’s
son, since the visa backlog time is greater than USCIS adjudication time. In this variation, the one-year USCIS adjudication
time would be subtracted from the two-year visa backlog. That
would still leave Mr. Zhong’s son with an additional year that
would be added to his calculation. In this scenario, Mr. Zhong’s
son would be not able to immigrate with his father when they
have their visa interview in Guangzhou because he is over 21 at
the time, despite the CSPA. Mr. Zhong’s son would have to find
his own visa route to immigrate to the United States.
According to Charles Oppenheim at the Department of State, the visa backlog is expected to be about 23 months at that time. Here, nine months is used
simply to illustrate potential outcomes.
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52
The State Department estimates that EB-5 retrogression will
start in the spring or summer of 2015 and that, when it occurs,
the backlog could be about two years. That is longer than the
current average USCIS I-526 processing time. In such cases, the
CSPA might not protect a child who is 19 or 20 when his or her
parent files the I-526 petition. Of course, every case will vary,
depending on the child’s exact age when the I-526 petition is
filed, how long USCIS takes to adjudicate the I-526 petition, and
when an EB-5 visa will become available in that particular case.
EB-5 parents can prevent this problem by making their child
the principal EB-5 investor. That would mean gifting or loaning
the child the required investment amount if the child does not
have it already. This would also mean that the parents would
either not immigrate themselves or would have to make a separate investment themselves to get their own EB-5 green card.
If the principal reason for getting an EB-5 green card is to help
the child, parents should consult their immigration attorney to
explore this option.
★
Stephen Yale-Loehr
EB5 INVESTORS MAGAZINE
Stephen Yale-Loehr is co-author of Immigration
Law and Procedure, teaches immigration law
at Cornell Law School, and is of counsel at
Miller Mayer in Ithaca, New York. He has been
chair, co-chair, or a member of
the EB-5 Investors Committee
of AILA for over 10 years. He
also founded and was the first
president of the Association to
Invest in USA (IIUSA).