CSPA and Child
Derivatives of
EB-5 Petitioners
by Bernard P. Wolfsdorf, Esq.
For many months, Chinese EB-5 immigrant visa applicants
have been warned of potential retrogression in the EB-5
preference category due to an all-time high demand for these
immigrant visas. For EB-5 applicants with children approaching the age of 21, it is critical to carefully consider and plan
for this possibility in order to ensure that their child derivatives
maintain their green card eligibility.
The reason to plan ahead is simple: U.S. immigration law
restricts benefits for children of immigrant visa applicants to
unmarried children under the age of 21. While this rule is
seemingly straightforward, a complicated formula designed to
protect children’s eligibility and to preserve family unity, known
as the Child Status Protection Act (“CSPA”), plays a crucial role
the events of retrogression and visa backlogs. The CSPA governs
whether child derivatives are entitled to their parent-principal
applicant’s immigration benefit, or whether they have “aged
out” of the definition of “child” under the Immigration and
Nationality Act (“INA”), by turning 21, and any derivative
benefit of the principal’s petition as a result.
Backlog Explained
When an immigrant visa is unavailable because demand for
the visas in the preference category exceeds the annual limit,
or cap, for that category, there is a backlog. In the event of a
backlog, the immigrant visa petition (the I-526 in the case of
EB-5) will be assigned a “priority date” corresponding to the
date the petition was received by USCIS. This date establishes
the applicant’s place in the green card waiting line. When the
applicant’s priority date becomes “current,” meaning that visa
numbers are available for applicants whose petitions were filed
before the cut-off date for the visa category, then the applicant
can be issued an immigrant visa, either at a consulate or embassy abroad, or through approval of an application for adjustment
of status (I-485) if in the United States. Until such time, the
principal applicant and his or her derivative(s) must maintain
their eligibility for an immigrant visa.
EB-5 Child Derivatives and Maintaining Eligibility
Maintaining eligibility until an immigrant visa becomes available is problematic for children-derivatives approaching the age
of 21 because ineligibility is established on the 21st birthday.
CSPA provides relief for children who would have maintained
eligibility but for the time USCIS took to adjudicate the immigrant visa petition. This relief takes the form of subtracting the
time the petition was pending from the child’s age; this is the
child’s “CSPA age.” Provided that the child’s CSPA age is under
21 at the time the immigrant visa is issued to the principal, the
child will not be ineligible to receive a visa based on age, even if
the child’s real age has reached 21.
CSPA also provides relief in the event of retrogression but
not in the case of a significant backlog: if the child’s CSPA
age is under 21 at the time the priority date becomes current,
and the child takes a step toward pursuing that immigrant
visa within one year of becoming current, such as filing an
I-485, then the child’s age is “locked-in,” and he or she will
be protected from aging-out. Child derivatives who are most
vulnerable are those who are near the age of 21 at the time of
the I-526 filing and whose CSPA age may reach 21 before the
priority date becomes current.
Retrogression Explained
Slightly different from a backlog, visa retrogression occurs
when the applicant’s priority date is current but a cut-off date,
making visa numbers unavailable to the applicant, is subsequently established. As with backlogs, the principal applicant
and his or her derivative(s) must maintain their eligibility while
waiting for the priority date to again become current and the
immigrant visas to be issued.
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E B 5 I n v e s to r s M ag a z i n e