How Indian EB-5 Investors Can Protect Their Children From Aging Out

If you are an Indian parent applying for the EB-5 visa, you’re likely doing it for your children. You want them to live in the United States, study at good schools, and have a future filled with freedom and opportunity. But, there’s one rule that can suddenly change everything, and it is called the dependent age-out rule.

Here, your child will be ineligible as a dependent if they turn 21 before you complete the process. That means they will have to find a separate path to stay in the U.S because they can no longer get a Green Card with you. And unfortunately, this rule hits Indian families the hardest.

In this article, we will explain what the age-out rule is and how you can avoid it to protect your child’s future.

What Is the Age-Out Rule in the EB-5 Program?

USCIS defines a “child” as someone who is under 21 years old and unmarried. If your child meets both conditions, you can include them in your application for them to receive permanent residency as your dependent.

However, if your child turns 21 before the Green Cards are available, they may be denied because they no longer qualify as a dependent. This is called “aging out.” In this situation, your child will have to apply for a different visa or start their own immigration case.

Why Indian EB-5 Investors Face More Risk of Aging Out

The EB-5 program has a yearly cap on how many Green Cards go to each country. Since India is one of the countries with the highest demand, there is usually a visa backlog. This simply refers to a long wait between your petition approval and the time you can apply for the Green Card.

While nationals from countries with no backlog can move through the EB-5 process exceptionally fast, Indian EB-5 investors often end up having to wait, depending on their unique circumstances or investment category. And if you face backlogs or delays in your immigration journey, your child keeps aging, making it difficult for you to include them in your immigration case when they turn 21.

The Role of the Child Status Protection Act (CSPA)

To help families with processing delays, the U.S. Congress passed the Child Status Protection Act (CSPA) in 2002. This law allows some children to stay eligible under certain conditions, even if they turn 21. The major way this act works is that it freezes your child’s age while USCIS is processing your EB-5 petition (Form I-526E).

For example, let’s say you file your Form I-526E when your child is 20 years and 6 months old and USCIS takes 18 months to approve it. During those 18 months, your child’s age is frozen at 20 years and 6 months, making your child’s CSPA age still under 21. Nonetheless, you must know that once the petition is approved, you must move fast to file the next step because the age will start counting again.

To lock in CSPA protection, a visa must be available when USCIS approves your petition. Then, you must file the Green Card application (Form I-485 or DS-260) before your child’s real age reaches 21. If you miss that window, your child may lose protection.

Summarily, while the CSPA helps, it only works well if you:

• Monitor your child’s age
• Track your petition’s timing
• Know when visas are available
• File your Green Card applications on time

How to Plan Ahead to Avoid Aging Out

Below are practical ways to take advantage of the CSPA and prevent aging out:

1. Start Early

The best thing you can do is start your EB-5 process when your child is still young. If your child is 16 or 17, you have more time to complete the EB-5 steps and still stay within the age limit. Even if your child is 18 or 19, you still have time, but you must act fast. The earlier you file your I-526E, the more time you’ll have to benefit from the CSPA freeze.

2. Track the Visa Bulletin

You should check the Visa Bulletin every month to know when Green Cards are available. When you go through the bulletin, you will notice that it has two key charts:

• Final Action Dates: Green cards are available when this date is current.
• Dates for Filing: You can submit the Green Card application when this date is current.

You need to follow the final action date because the CSPA protection only works based on it. If your final action date becomes current, and your child’s CSPA age is under 21, you must file the Green Card application right away to lock in their age.

3. Use Concurrent Filing

In 2022, new rules allowed concurrent filing for EB-5 investors who are already in the United States. Concurrent filing lets you submit your EB-5 petition (Form I-526E) and your Green Card application (Form I-485) together, as long as a visa is immediately available to you. This approach can help your child benefit from CSPA protections and also provides lawful status in the U.S. while you wait.

4. Talk to an Experienced Immigration Attorney

The immigration process can be complex, and one mistake can cost your child their Green Card. This is why you should work with an experienced EB-5 attorney instead of managing the risks and pressures alone. The right EB-5 lawyer can help you calculate your child’s CSPA age, track the Visa Bulletin for your priority date, and help you file forms on time.

Work With EB5AN to Manage Age-Out Concerns

Aging out can cause serious stress for you as an Indian EB-5 investor if it forces you to leave your children out of the Green Card process. However, gathering your documents in advance and working with an immigration attorney who understands Indian EB-5 cases can make all the difference.

At EB5AN, we have helped over 2,700 families from 70+ countries, including many Indian families, to become lawful permanent residents of the United States.

Book a free call with our expert team today to take the right moves before the Green Card clock runs out on your children.