Children are the primary reason many Chinese families choose to immigrate to the United States. Given the issue of U.S. immigration visa backlogs, many are concerned about whether their children will passively age out during the waiting period. So, in a U.S. EB-5 investment immigration application, how exactly should the age of accompanying children be calculated?
According to regulations, unmarried children under the age of 21 may accompany their parents to immigrate to the United States. For U.S. immigration applicants, after the I-526 petition is filed, their children who turn 21 may be protected by the Child Status Protection Act (CSPA). Under the CSPA, it is permitted to subtract the petition processing time from the child's age. In other words, if the child's age at the time of filing the I-526, minus the I-526 processing time, plus the visa backlog time, is greater than 21 years, the child will age out. Conversely, if the child's age at the time of filing the I-526, minus the I-526 processing time, plus the visa backlog time, is less than 21 years, the child will not age out.
For example, if a U.S. investment immigration EB-5 applicant's child is 20 years old at the time of filing the I-526 petition, and the I-526 processing time is 10 months, then the age should be 20 years - 10 months + 25 months (calculated based on the April 2016 visa bulletin) = 21.3 years. In this case, the applicant's child has aged out.
If the applicant's child is also 20 years old at the time of filing the I-526 petition, but the I-526 processing time is 16 months, then the age should be 20 years - 16 months + 25 months (calculated based on the April 2016 visa bulletin) = 20.75 years. In this case, the applicant's child has not aged out.
From this, it can be seen that slow I-526 petition processing, from another perspective, has the benefit of protecting the child's age, which is particularly advantageous for applicant families whose children are about to age out.
According to the provisions of the U.S. Child Status Protection Act, if an EB-5 investment immigration applicant's child may age out, the following measures can be taken:
1. Upon receiving the visa application fee payment invoice, the fee should be paid as soon as possible;
2. If the visa application fee payment invoice has not been received, request the invoice from the National Visa Center and submit the DS-230 form. Even if the National Visa Center ultimately refuses to accept it, the rejection letter can serve as evidence of the act of "applying for immigration status." Applicants need to keep all receipts, filing confirmation proofs, return envelopes, etc.;
3. File the I-824 form;
4. If the applicant is in the United States and is eligible to file an I-485 application for adjustment of status, it is best to file the I-485 form as soon as possible; this is the best method.
