EB5 Investors Magazine Volume 1 Issue 2 | Page 41

Some Examples Scenario 1- priority date current 1-Child derivative’s date of birth: September 2, 1992 2-Date petition filed (the “priority date”): August 1, 2013 3-Date Form I-526 (Petition for Alien Entrepreneur) was approved: March 2, 2014 4-Time Form I-526 was pending: 213 days 5-Date the priority date became current (by looking at the Department of State Visa Bulletin): Always current 6-Date the visa became available (later of either #3 or #5): March 2, 2014 (date of I-526 approval) 7-Actual age of child derivative on date visa became available: 21 years, 6 months 8-CSPA age (#7 minus #4): 20 years, 332 days Scenario 2- visa backlog 1-Child derivative’s date of birth: September 2, 1992 2-Priority date: August 1, 2013 3-Date Form I-526 (Petition for Alien Entrepreneur) was approved: March 2, 2014 4-Time Form I-526 was pending: 213 days 5-Date the priority date became current: August 13, 2014 6-Date the visa became available (later of either #3 or #5): August 13, 2014 7-Age of child derivative on date visa became available: 21 years, 11 months, 11 days 8-CSPA age: 21 years, 4 months, 13 days. Child has aged-out. As the above examples illustrate, for Chinese EB-5 petitioners with unmarried children who are nearing the age of 21, and for whom derivative benefits are sought, it will be important to track the child derivative’s birthday and to carefully monitor any EB-5 backlogs for China, because a lengthy backlog may mean the child-derivative will lose eligibility. Moreover, for representatives of EB-5 petitioners, this may also involve legal tactics to prolong the period of I-526 adjudication to close the gap between the adjudication period and the time the visa becomes available. This will increase the likelihood that the child derivative’s age at the time of visa availability is under 21 for CSPA purposes. Finally, keep in mind that while the child derivative’s age is vitally important, the child derivative must also remain unmarried, or the child will lose child derivative designation under the INA and all these protective measures would be abandoned. CONCLUSION EB-5 petitioners with unmarried child derivatives who are near the age of 21 should follow these guidelines for determining eligibility, and carefully monitor updates on EB-5 retrogression while notifying their legal representative of the age of any children over 19. ★ Bernard P. Wolfsdorf is past President of AILA and Managing Partner of an 18-lawyer immigration firm with New York and Los Angeles offices. He was voted “Immigration Lawyer of the Year” in 2013, 2012, 2011 and 2010 by International Who’s Who Legal, the official research partner of the ABA and the IBA. He filed his first EB-5 case in 1993, serves on AILA’s EB-5 committee and has over 20 years of experience assisting EB-5 immigrants. Email: Bernard@Wolfsdorf.com A USCIS Approved EB-5 Regional Center Connecting foreign investors to successful projects to promote job growth and build strong communities Jonathan Curtis, ESQ. Larry J. Kosmont, CRE info@californiagoldenfund.com 865 South Figueroa Street, 35th Floor, Los Angeles, CA 90017 Phone: 213-417-3396 • Fax: 213-417-3311 www.californiagoldenfund.com w w w. E B 5 I n v e s to r s . c o m 41