The answer to this question depends on whether a visa waiting list exists at the time the Investor’s I-526 application is approved. The Child Status Protection Act (“CSPA”) provides some protection for family’s immigrating to the U.S. with the general aim of keeping families together. In the above situation, it is helpful to consider the following example:
i. The Investor files his/her EB-5 application when the dependent child is 20 years, 9 months old.
ii. The I-526 petition is approved 18 months later, when the child’s biological age is 22 years and 3 months. Generally, a child over the age of 21 would not be allowed to receive a green card based on his parent’s I-526 petition (initial EB-5 petition).
iii. However, the CSPA provides some relief in this situation. For the purpose of considering immigration benefits, the child’s age would be calculated in the following manner: The time that the I-526 petition was pending with USCIS (18 months, from receipt date to approval date) would be subtracted from the child’s biological age at the time the I-526 petition was approved. Therefore, in the situation above, at the time the parent’s I-526 was approved, the child’s CSPA age would be 20 years, 9 months old (22 years and 3 months minus the 18 month I-526 petition adjudication time).
iv. Therefore, after the I-526 is approved, the child’s age would is considered to be under 21 when applying for immigration benefits (such as a green card). If a green card is immediately available for Indian nationals in the EB-5 category (there is no Department of State waiting list for visas) and the Investor and child apply for their conditional green cards within a year of the EB-5 petition approval, the child’s age would remain “frozen” at his/her CSPA age after the EB-5 petition approval.
v. However, if a visa waiting list exists for Indian nationals at the time of the I-526 approval, then visas would not be immediately available and the investor and child would not be able to apply for his/her conditional green cards after the I-526 approval. In this situation, the child’s age would continue to increase after the I-526 petition is approved. Once the child’s CSPA age is over 21, the child would be considered to have “aged-out” and would be ineligible for a green card based on the approved I-526 petition.
vi. Therefore, in the situation above, if a waiting list does not exist for Indian nationals at the time of the Investor’s I-526 approval, the child would be eligible for a green card. However, if at the time of Investor’s I 526 approval, a waiting list exists for Indian nationals that is more than 3 months in duration, the child would likely age-out and be ineligible for a green card based on his parent’s I-526 petition.