One of the most distressing consequences of visa retrogression for EB-5 applicants from mainland China is the issue of children (derivative applicants) aging out. Before the cutoff date was established for mainland Chinese investors in May 2015, there were few opportunities to "seek to acquire" permanent resident status, a measure that can effectively "freeze" a child's age. However, as the retrogression period has exceeded 30 months and continues to grow, even with many applications pending for 1-2 years, the priority date or filing date may not be "current" when the I-526 petition is approved. Therefore, taking "seek to acquire" measures cannot effectively freeze a child's age. Consequently, unless the child is 17 or 18 years old at the time of filing, most 20-year-olds and many 19-year-olds are likely to age out.
Therefore, among the hundreds of I-526 filings from 2014 and 2015 where children (derivative applicants) sought permanent residency alongside their parents (principal applicants), many children whose parents were approved but failed to take action before May 2015 may face aging out. This is because children, as derivative applicants, must obtain their green cards before turning 21. With the increasing visa backlog for mainland China, these children are highly likely to be unable to obtain green cards due to "aging out."
The Child Status Protection Act (CSPA) provides a solution that allows applicants to "freeze" the age of children who are derivative applicants, thereby protecting them from the risk of aging out. However, meeting the CSPA requirements to lock in a derivative applicant's age is not easy. Practitioners and EB-5 families must navigate between various departments of the U.S. Department of State (DOS) and keep up with changing guidelines.
The following is important information to understand if you wish to take advantage of the freezing procedure through CSPA:
CSPA Basics: CSPA allows the actual age of a child who is a derivative applicant to be reduced by the time the I-526 petition was pending. The CSPA age is the child's actual age on the date the visa becomes available (which can be the date the petition is approved, or the first day of the month in which the priority date is current according to Table A) minus the time the petition was pending. However, CSPA does not allow the child's actual age to be reduced by the time between the I-526 approval and the visa becoming available, unless measures were taken to freeze the child's age when the visa became available. There was no retrogression before May 2015, but now, when an applicant receives I-526 approval, their priority date is usually not yet current.
Locking the CSPA Age: To effectively lock in the age, the child must "seek to acquire" permanent residency within one year of the visa becoming available.
How to Lock: Previously, the Foreign Affairs Manual (FAM) proposed three main methods to lock in a child's age:
Filing Form DS-260, though filing Form DS-230 was also permitted;
If the principal applicant adjusted status in the U.S., the child as a derivative applicant seeking a visa could file Form I-824;
If both the principal applicant and the child are in the U.S. with legal status, they could file Form I-485 to adjust status. If only the principal applicant files Form I-485, the child's age cannot be locked.
U.S. Department of State guidance also indicates that paying the consular visa fee is sufficient to meet the "seek to acquire" requirement (of course, payment cannot be made unless a fee bill has been issued, but in many cases, the DOS will not issue a fee bill). The issuance of fee bills is random and unpredictable.
April 15, 2016 Policy Memorandum. Following the BIA decision, USCIS published guidance in Matter of O. Vazquez, clarifying the CSPA locking procedure. Notably, the guidance suggests that the payment of the visa application fee (rather than the actual submission of the visa application) "may" satisfy the "seek to acquire" requirement.
Changes in New Rules: After the DOS revised and reformulated the FAM, and the Visa Modernization Program created Tables A and B of the Visa Bulletin, the CSPA locking rules changed. The new rules in 9 FAM 502.1-1(D)(6) are as follows:
Applicants can no longer file Form DS-230 while filing Form DS-260 to freeze a child's age.
Payment of the visa fee "can" satisfy the seek to acquire requirement.
Current Issues: Despite some new provisions in the FAM, complying with these rules is actually more difficult than it appears. To file Form DS-260 and pay the fee, the National Visa Center (NVC) must send a fee bill to each family member. However, if the NVC believes a child is close to aging out, it will not issue a fee bill for that child, making it impossible for families who cannot file Form I-485 to complete the locking procedure. In contrast, Form DS-230 is a paper form and can be completed even if the NVC has not issued a fee bill. It is also common for interview appointment notices not to be issued for children. It is wise to notify USCIS at the I-526 stage that derivative beneficiaries will seek consular processing and to provide copies of passports, birth certificates, and identity cards so that when the case is forwarded to the NVC, the corresponding fee bill number can be issued.
Further Issues: Even if the locking procedure is completed perfectly, the challenge for the applicant becomes how to prove this to the consular officer. Expired Form DS-230s are not entered into the central database, so the consular officer does not know whether the appropriate locking procedure has occurred. Similarly, although Form I-824 may be filed, USCIS does not automatically notify the DOS that the form has been filed.
Solution: In these cases, one must continuously request the issuance of a fee bill. If a child is not included in the interview notice, practitioners must contact the consulate to issue a legally binding summary to support the claim that the child has not aged out and provide evidence that the locking procedure has been completed. It is important to point out that the child's final age should be determined at the time of the interview, not before.