The decision to leave one’s country of nationality and immigrate to another is a decision that has many far-reaching ramifications.  Perhaps the most important concern is the effect of such a decision on the intending immigrant’s children.  In the context of the EB-5 program, an investor can include children in his or her immigrant visa application, but not always.  The application process can take a long time, and, if the children are very young, they will continue to be eligible to be included in the investor’s application as derivative beneficiaries.  It is possible, however, for a child to not qualify as a derivative beneficiary or to “age-out” of the eligibility to be a derivative beneficiary.  In light of increasing administrative delays in the processing of investor petitions and continuing immigrant visa backlogs, the Child Status Protection Act (CSPA) was enacted in 2002.  This law attempts to preserve family unity and minimize the possibility that a child might be left behind due to the child aging out.  

What is the definition of “child” for the purpose of an immigrant visa?

For eligibility as a derivative beneficiary of an immigrant visa application, a “child” is someone who is unmarried, has not yet reached their 21st birthday, and is:

  • The investor’s biological child;
  • The investor’s stepchild if the investor married the biological parent of the child prior to the child’s 18th birthday; or,
  • The investor’s adopted child if the legal adoption process was fully completed prior to the child’s 16th birthday and the child has resided in the legal and physical custody of the investor for at least two years.

If a child gets married, reaches the age of 21, or does not qualify as the investor’s biological child, stepchild, or adopted child, that child will not be eligible to be included in the application as a derivative beneficiary.

How does the CSPA protect against “aging-out”?

If a child has already reached the age of 21 when an immigrant visa becomes available for the investor, the CSPA allows for a child’s biological age to be recalculated.  The recalculation involves the following two questions:

What is the child’s age when the immigrant visa becomes available?

How long was the investor’s Form I-526 petition pending with USCIS?

The amount of time that the Form I-526 petition was pending is subtracted from the child’s age when the immigrant visa becomes available.  The result of that recalculation is the “CSPA Age.”  If the CSPA age is under 21, then the child remains eligible to be a derivative beneficiary of the investor’s petition – but only if certain actions are taken within one year of the immigrant visa becoming available.

What else must be done in order for a child to maintain eligibility as a derivative beneficiary?

In order for a child to maintain eligibility to be a derivative beneficiary of the investor’s petition, the child must “seek to acquire” the immigrant visa within one year of the immigrant visa becoming available.  The actions that fulfill this “seek to acquire” requirement include any one of the following:

• Paying the immigrant visa fee to the National Visa Center;

• Filing the Form DS-260, Immigrant Visa Electronic Application with the National Visa Center;or,

• Filing the Form I-485, Application to Register Permanent Residence or Adjust Status with the US Citizenship and Immigration Services (USCIS).

This article provides general information only. The information provided here is not investment, tax or legal advice. You should consult with a licensed and experienced professional for advice concerning your specific situation. 

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