When the EB-5 Immigrant Investor Program requires such a large investment of $500,000, it is understandable that the investor wants to bring as many family members as possible with just one investment of $500,000. 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. So far, the EB-5 category has not backlogged, but it is anticipated that the EB-5 category will backlog for citizens of China from approximately May 2015. The EB-5 category is not likely to backlog for citizens of other countries.
- 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 only exceptions will be the children and stepchildren of Chinese EB-5 investors once the quota backlogs for the Chinese starting in May 2015. It is anticipated that the quota for the Chinese will backlog by 2 years. Moreover, it is anticipated that the quota for the Chinese will backlog by yet another 1-2 years around January 2016. Therefore, I would recommend that Chinese investors, who have a son or daughter 17 years of age or older, gift the funds to the son or daughter to enable him or her to invest and self-petition on his or her own in order to avoid aging out if the parent would be the investor and self-petitioner. The child needs to be at least 18 years of age in order to enter into the contracts that must be signed in order to invest and qualify as an EB-5 self-petitioner.
In order for aged-out sons or daughters over 21 years of age, or for married sons or daughters, regardless of age (married sons or daughters cannot qualify under their parents even if they are still under 21 years of age), parents, or other relatives to immigrate under the EB-5 program, those relatives would need to make their own additional investment of $500,000 and self-petition on their own behalf. The main EB-5 investor can gift funds to those relatives in order to help them to invest and immigrate under the EB-5 program.
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.