Aging Out: Key Considerations for EB-5 Investors and Their Families

The EB-5 visa program allows the primary investor along with their spouse and any unmarried children under 21 to apply for permanent residency in the U.S. This investment-based route is popular among foreign nationals seeking U.S. residency but introduces specific challenges notably the issue of “aging out.” This occurs when a dependent child turns 21 and loses eligibility under EB-5 law, impacting families engaged in or planning for the EB-5 process. To manage this risk, it’s crucial for families to consider strategies to ensure their children remain eligible throughout the immigration process.

Understanding “Aging Out”: “Aging out” refers to children losing their derivative status upon turning 21, which can occur if the Green Card process is not completed by the 21st  birthday.

When children age out in the immigration process, they face multiple consequences:

• Loss of Legal Status: Children who turn 21 before the completion of their family’s green card process lose their dependent status and potentially their legal status in the U.S.
• Family Separation: Aging out can lead to family separations, as these young adults might have to leave the U.S. if they don’t qualify for another visa.
• Educational Disruption: Loss of legal status can mean losing access to financial aid, in-state tuition, and the ability to legally work, which can interrupt their higher education.
• Economic Impact: Without legal status, aged-out children face significant barriers to legal employment, affecting their economic stability and contribution.
• Psychological Effects: The stress and uncertainty associated with aging out can lead to mental health issues such as anxiety and depression.
• Long-Term Legal Consequences: Those who age out may face complex and costly legal challenges as they attempt to navigate the immigration system independently.

These points underscore the need for timely processing of immigration applications and potential policy reforms to protect young individuals from the consequences of aging out.

The Child Status Protection Act (CSPA):

The Child Status Protection Act (CSPA) offers a crucial safeguard in U.S. immigration processes to prevent children from aging out due to prolonged visa processing times. The Act facilitates a specific calculation known as the “CSPA age,” which is designed to preserve a child’s eligibility for immigration benefits by adjusting their age.

This adjusted age is calculated by subtracting the time their visa application was pending from their actual age at the time a visa becomes available. This recalibration helps ensure that delays in visa processing do not unfairly disadvantage children who were under 21 at the time of their application but turned 21 during the processing period. This mechanism is vital for maintaining family unity by allowing these children to remain eligible under their parent’s immigration applications. Here’s how it works:

1. Approval of the I-526E Immigrant Visa Petition: The child’s age is initially considered at the time the I-526E immigrant visa petition filed by their parent is approved.
2. Deduction of Processing Time: From this age, USCIS subtracts the length of time the visa petition was pending. This means the time from when the I-526E petition was filed to the time the EB-5 Visa was approved.
3. Seeking to Acquire a Visa: The child must seek to acquire the visa within one year of a visa becoming available, following the approval of the visa petition. For this to happen, there must a number available for the EB-5 visa category for citizens of the applicant’s country.

The recalculated “CSPA age” can maintain a child’s eligibility as a dependent if under 21 at the time the visa becomes available, even if they have technically aged out. This calculation is vital for maintaining family unity and ensuring children can immigrate with their parents.

The Danger of Visa Retrogression

The CSPA does protect children against delayed processing, but not against a visa number not being unavailable , a circumstance known as Visa Retrogression. Visa retrogression occurs when more people apply for a U.S. visa under a particular category than there are visas available, causing the issuance of visas to pause or slow down. This often happens when the number of visa applications exceeds the annual limits set by U.S. immigration law, particularly in categories subject to high demand.

A key factor in U.S. immigration law contributing to visa retrogression is the 7% per country cap. This rule limits any single country to no more than 7% of the total visas available in most categories each year to maintain diversity among immigrants. However, this can lead to significant backlogs for countries with high demand for visas, such as India and China, causing extended waiting times, sometimes spanning years or even decades.

When retrogression occurs, the U.S. Department of State’s Visa Bulletin will show a regression in the “cut-off dates,” which are the priority dates of applicants who are currently eligible to receive visas. Applicants with a priority date after the cut-off date must wait for the visa to become available again, which can only happen as new visas are issued in the next fiscal year or as fewer applications come from other countries, allowing underutilized visas to be reallocated.

The Visa Bulletin, while essential for understanding current visa availability, does not offer predictive capabilities and therefore is limited as a forecasting tool. It provides a monthly snapshot of visa status but does not incorporate predictive modeling or adapt to shifts in immigration laws, policy changes, or demand fluctuations. The bulletin reacts only to applications that have been received and processed, lacking the necessary historical data to effectively analyze past trends or predict future shifts. Given these limitations, stakeholders  engaged in long-term immigration planning, such as EB-5 investors, are recommended to consult with immigration attorney and utilize multiple information sources to better navigate and prepare for changes in the visa landscape. The combination of high demand and the per country cap can severely delay visa issuance, causing disruption and uncertainty for applicants planning to immigrate to the U.S.

Importance for H1-B Visa Holders

Aging out poses a significant risk for H1-B visa holders, particularly those from China and India, where the wait for EB-2 and EB-3 visas can extend into decades due to severe backlogs. As their H1-B status may expire well before a visa number is available for them, their children may also age out. Individuals in this situation must explore alternative solutions.

The EB-5 Visa

The EB-5 visa program provides a viable solution to the challenge of aging out, which affects dependents who turn 21 and lose their eligibility as dependents under their parents’ immigration applications. Here’s how the EB-5 program can help mitigate this issue, particularly through reserved visa categories and concurrent filing along with a consideration of the limitations related to the Visa Bulletin:

1. Reserved Visa Categories: To avoid the complications of sudden retrogression, which could render the EB-5 Visa category temporarily inactive even after approval of your I-526E Petition, selecting a visa category with ample visas and swift processing is critical. This is especially pertinent for EB-5 investors from high-demand countries like China, India, Taiwan, Vietnam, and South Korea, where unexpected retrogression can occur.

Rural projects within the EB-5 program are especially advantageous. They not only have 20% of all EB-5 visas reserved, significantly more than the 10% for High Unemployment Area TEAs and 2% for infrastructure projects, but also are prioritized for faster processing, typically around four months. This rapid processing substantially reduces the risk of children aging out due to sudden changes in visa availability.

While Targeted Employment Areas (TEAs) for high unemployment also aim to expedite processing, the high demand for category has led to oversubscription as we have stated in previous blog posts. Therefore, it’s crucial for applicants to carefully assess subscription levels and processing times in these categories to ensure they choose the most effective route to prevent aging out.

Opting for a rural project in the EB-5 program offers a more secure path to residency, mitigating risks linked with sudden visa availability changes and ensuring quicker processing to maintain family unity.

• Concurrent Filing: Concurrent filing, where eligible investors and their dependents file their adjustment of status applications (I-485) at the same time as the EB-5 visa petition (I-526E), is critical. This approach is especially beneficial in the context of visa retrogression. Even if retrogression occurs, as long as the I-485 was filed concurrently with the I-526E, the child’s age is effectively “frozen” under the Child Status Protection Act (CSPA) guidelines. This means that if the child turns 21 after filing but during the processing period, they do not age out and lose their eligibility for a green card.

• Choose an Approved Project: Choosing an approved project for EB-5 investment is crucial because these projects have pre-validated job creation estimates and other compliance aspects, which can streamline the adjudication of the I-526E petition. Faster processing of the I-526E petition greatly improves the chances of beating visa retrogression, as the application moves more swiftly through the necessary immigration channels.

• Partially Fund and File I-526E before Child Ages Out: Choose a Regional Center with a project that accepts funding in installments and file your I-526E Conditional Green Card application. In this way you can lock in the age of your child even with partial liquidity.
• Make the Aged-Out Child an EB-5 Applicant: Making an aged-out child an EB-5 investor is a strategic approach to manage aging-out in the EB-5 visa program. This method is useful if the child has turned 21 and is no longer eligible as a dependent under their parents’ application. Parents can gift or loan  the necessary investment funds to their child, who can then file their own EB-5 application. Key steps include documenting the source of the funds to ensure compliance with USCIS requirements, considering potential gift tax implications, and investing in a project that meets the job creation criteria. This approach allows the child independence in their immigration process, potentially expediting their residency status if the parents’ application faces delays. However, it also requires the child to assume significant financial and legal responsibilities and carries the risks typical of EB-5 investments.

Conclusion

While the EB-5 program offers mechanisms like reserved visa categories and concurrent filing that can mitigate the risk of aging out, it is essential for potential investors and their families to remain cognizant of the limitations posed by the Visa Bulletin and the potential for oversubscription in certain categories. Consulting with an experienced immigration attorney can provide crucial guidance tailored to the specifics of one’s case, ensuring that all potential risks are appropriately managed.