What Family Members Can Immigrate Together Based on the same Investment?
When the EB-5 Immigrant Investor Program requires such a large investment of $900,000, it is understandable that the investor wants to bring as many family members as possible with just one investment of $900,000. The investor’s qualifying family unit includes only the investor, investor’s spouse, and any sons or daughters under the age of 21 at the time of filing the I-526 petition.
Stepchildren qualify only if the investor married the stepchild’s biological parent before the stepchild reached 18 years of age. In the event that the stepchild reached 18 years of age before the investor married the biological parent, then we would discuss the possibility of the investor gifting the funds to the spouse so that the spouse becomes the investor and qualifies the stepchild along with any children in common or younger children of the spouse who is the source of funds.
Sons or daughters who are close to reaching 21 years of age can still be covered by the parent’s or stepparent’s EB-5 process. However, they will need the help of the Child Status Protection Act, which serves, in most cases, to lock in the child’s age at the time of filing the I-526 petition. However, there are some specific requirements that need to be met in order for the Child Status Protection Act (“CSPA”) to lock in the child’s age at under 21 years of age.
- The I-526 petition must be filed for the child reaches 21 years of age.
- Once the I-526 petition is approved, the period that the I-526 petition was pending will be subtracted from the child’s age; however, in order for the child’s age to lock in, the EB-5 quota category must not be backlogged. If the category is backlogged, the age will not lock in until the investor’s priority date (the date when the I-526 petition was filed) becomes current.
- The child must file for consular processing of an immigrant visa or for adjustment of status, together with the parents, within one year of the approval of the I-526 petition and of the priority date of the I-526 petition becoming current.
The bottom line is that, in most cases, as long as the parent or stepparent files the I-526 petition before the child or stepchild turns 21 and that I-526 petition is approved, the child or stepchild can immigrate together with the rest of the family.
Currently, the exceptions will be the children and stepchildren of Chinese, Vietnamese, and Indian EB-5 investors who are subject to quota backlogs. If the I-526 petition is approved, but the quota backlog prevents them and their parents from moving forward with the immigration process, their age does not stay locked in. The time during which the I-526 petition is still pending is subtracted from the child's age, but once the I-526 petition is approved, the child's age continues to advance.
USCIS announced, in January 2020, that it will delay processing of I-526 petitions for investors who are from backlogged countries, while it will focus on processing I-526 petitions of investors who are from countries that are not backlogged. This will actually benefit the children of the investors from backlogged countries, since the I-526 petition will remain pending for longer, possibly well into the quota backlog period, which would serve to keep the age of the children locked in for longer. This will also benefit the investors and their families from countries that are not backlogged, since it will speed up the processing of their I-526 petitions as USCIS stops focusing so many resources on processing the I-526 petitions of investors who are not even in a position to move forward once their I-526 petition is approved. This is a step in the right direction for EB-5 investors from non-backlogged as well as from backlogged countries.
Another solution has arisen for parents from the backlogged countries (currently China, Vietnam, and India) who are more interested to help their child or children to immigrate to the U.S. than they are to immigrate to the U.S. themselves. It is now possible for minors as young as 12 years old to invest and apply for the EB-5 green card on their own. This is a solution that will avoid having the child age out from the parent's immigration process. The parents and other relatives of the child can gift the investment funds to the child to enable him or her to make the $900,000 investment and immigrate under the EB-5 program. This means that the parents cannot immigrate to the U.S. with the child. However, if the child later obtains U.S. citizenship, then there is a relatively short immigration process for the child to obtain permanent residence for the parents within about 1 to 1.5 years from becoming a citizen and filing for the parents.
Given all the restrictions on what relatives can immigrate together with the EB-5 investor, it is important for the EB-5 investor to strategize the case together with an immigration attorney well ahead of time in order to make sure that the I-526 petition is filed before any of the EB-5 investor’s children turns 21 so that we can plan ahead to find a solution for that child to immigrate under the EB-5 program, whether as dependent or as investor.