Due to EB-5 visa retrogression, many parents applying for U.S. EB-5 immigration face a common issue: their children may exceed the age of 21. Consequently, many parents are considering having their children become the EB-5 investors and principal applicants. So, how does one proceed with having a child serve as an EB-5 investor and applicant?
First, please be aware that the U.S. Citizenship and Immigration Services (USCIS) has not yet established a policy regarding the eligibility of minors as investors. Although there are currently no explicit prohibitions, USCIS could change its policy at any time in the future to restrict minor investors. Therefore, it is advisable to proceed with caution and limit the number of minor investors in any single project.
USCIS has indicated that there is currently no policy prohibiting minors from serving as EB-5 investors and applicants. However, the investor must demonstrate, by a preponderance of the evidence, that their investment contract is legal, valid, and irrevocable.
In the United States, generally speaking, contracts entered into by minors may be void or voidable upon reaching the age of majority. However, the Uniform Transfers to Minors Act (UTMA, also known as the Uniform Gifts to Minors Act) stipulates that a parent or guardian may sign a contract on behalf of a child in the child's name, and such a contract is irrevocable.
To facilitate this securities sale, the project's subscription agreement and operating agreement must include the following text on the signature page:
______________________ (NAME OF PARENT OR GUARDIAN) as custodian for ______________________ (NAME OF MINOR INVESTOR) under the [State] Uniform Transfers to Minors Act______________________Printed Name of Parent or Legal Guardian______________________Signature of Parent or Legal Guardian.
Secondly, the following points should be noted:
1. Parents must gift the investment funds to the child, and the child must receive these funds in their own account or in a joint account held with the parents.
2. Parents cannot, at any time, hold limited partnership or limited liability company interests in the EB-5 investment entity. In other words, ownership must reside directly in the child's name. Although parents have a duty to manage the child's property until the child reaches the age of 18 (or 21 in some states), control will automatically vest in the child once they reach the age of majority.
An irrevocable investment contract created by a parent purchasing EB-5 company interests on behalf of a child in accordance with the UTMA should satisfy the current USCIS interpretation of EB-5 requirements. Children under the age of 14 may not be able to sign immigration forms on their own behalf; therefore, we generally do not recommend accepting investors under the age of 14.
Although laws, regulations, and USCIS policies do not currently set an age limit, we still prefer to limit this transaction to children aged 16 and 17. While investors aged 14 and 15 are not prohibited, they may face greater resistance from USCIS, negative public reporting, or political scrutiny now or in the future. Currently, Worldway Group has already achieved successful cases where minors served as principal applicants and received I-526 approval.