The EB-5 Reform and Integrity Act of 2022 brought many changes to the EB-5 program. For the latest information, please click here.
As we noted in an earlier client alert, on Monday April 13, 2015, Mr. Charles Oppenheim, U.S. Department of State, Chief, Immigrant Visa Control and Reporting Division, announced a visa backlog in the EB-5 category for Mainland China. Effective May 1, 2015, the priority date in the EB-5 category for China will be May 1, 2013. Further, it is estimated that at the beginning of the new fiscal year on October 1, 2015, the cutoff date will likely be two to three years. In other words, the projection is that in the fall of 2015, the cutoff date might retrogress from May 2013 to fall 2012.
To re-cap, the Child Status Protection Act (“CSPA”) was passed to prevent a child from becoming ineligible to immigrate with his or her parent because of processing delays by U.S. Citizenship and Immigration Services (“USCIS”). The law “freezes” a child’s age as of the I-526 petition filing date and during the entire time that the petition is being processed by USCIS.
Assuming the quota is current (that is, a visa number is available) when the EB-5 petition is approved, the child’s age remains frozen as long as the child “sought to acquire” his immigrant visa or green card within one year of I-526 approval. USCIS interprets filing the DS-260, or I-824, or paying the NVC fees as “sought to acquire.”
April 13th Memo
On April 13, 2015, the U.S. Department of State also released a memo which can be found at http://travel.state.gov/content/dam/visas/VO%20Attends%20IIUSA%20EB5%20Conference.pdf (“April 13th Memo”). The April 13th Memo provides guidance for Investors with children who are approaching the age of 21, to protect the child during quota backlogs.
The highlight of the April 13th Memo is the confirmation by the U.S. Department of State that the “sought to acquire” standard “may be satisfied with the payment of the visa application fee rather than the submission of the DS-260”. Additionally, the DOS confirmed that the National Visa Center would continue to issue NVC Fee Bills for all investors whose I-526 petitions were approved prior to May 1, 2015. While no time-frame was provided for issuance of the Fee Bills, it was mentioned that they would be issued on an expedited basis. Additionally, payment of such NVC Fee Bills BEFORE the one year anniversary of the I-526 approval would continue to freeze the child’s age and the child would remain protected under CSPA.
When is the last date to pay the Fee Bill?
As detailed in the April 13th Memo, if a retrogression or setting of a cutoff date occurs within 12 months of approval of the case, the applicant can still satisfy the “sought to acquire” requirement until the 12 month period expires. In other words, since the retrogression is effective May 1, 2015, all cases that were approved prior to May 1, 2015 have 1 year from the date of I-526 approval to pay their NVC Fee Bill. In this scenario, the child’s CSPA age would be calculated using the approval date of the Petition, and upon payment of the NVC Fees, would lock-in the child’s CSPA age as set out in USCIS’s Adjudicator’s Field Manual, section 21.2(e)(1)(ii)(E).
For Example:
Hypothetical # 1
Child #1 DOB: February 1, 1993
I-526 Petition filed: January 1, 2014
I-526 Petition approved: March 1, 2015 (after 14 months)
Visa backlog hits on May 1, 2015 (cutoff date is May 1, 2013)
Visa becomes current May 1, 2017
Scenario 1: NVC Fees paid on August 1, 2015.
CSPA Age = Age of child on date of I-526 approval or visa availability MINUS time I-526 was pending.
CSPA Age = Age on March 1, 2015 minus Time I-526 was pending
(22 years 1 month) minus (14 months) = 20 years 11 months
In this scenario, the child remains protected in 2017
If the applicant did not lock in CSPA’s age-out protection during the first 12 month period (i.e between March 1, 2015 and March 1, 2016) in which the visa backlog occurred, an applicant would have a second 12 month window to satisfy the “sought to acquire” requirement once the petition becomes current again. In this scenario however, the CSPA age would be calculated using the new availability date (versus the date the visa first became available).
Scenario 2: AOS or DS-260 filed on June 1, 2017.
CSPA age: age on May 1, 2017 minus time I-526 was pending
(24 years 3 months) minus (14 months) = 23 years 1 month
Child’s CSPA age is over 21 and therefore no longer qualifies as a beneficiary of her Parent’s EB-5 Petition
Hypothetical #2
Child #2 DOB: February 1, 1996
I-526 Petition filed: January 1, 2014
I-526 Petition approved: March 1, 2015 (after 14 months)
Visa backlog hits on May 1, 2015 (cutoff date is May 1, 2013)
Visa becomes current May 1, 2017
Scenario 3: NVC Fees paid on August 1, 2015.
CSPA Age = Age of child on date of I-526 approval or visa availability MINUS time I-526 was pending.
CSPA Age = Age on March 1, 2015 minus Time I-526 was pending
(19 years 1 month) minus (14 months) = 17 years 11 months
In this scenario, the child remains protected in 2017
If the applicant did not lock in CSPA’s age-out protection during the first 12 month period (i.e. between March 1, 2015 to March 1, 2016) in which the visa backlog occurred, the applicant would have a second 12 month window to satisfy the “sought to acquire” requirement once the petition becomes current again. In this scenario however, the CSPA age would be calculated using the new availability date (versus the date the visa first became available).
Scenario 4: AOS or DS-260 filed on May 1, 2017.
CSPA age: age on May 1, 2017 minus time I-526 was pending
(21 years 3 months) minus (14 months) = 20 years 1 month
In this scenario, the child remains protected in 2017
What Should Investor Do If In The U.S. In Valid Status?
If the investor and child are in the U.S. in a valid status, they should all immediately and no later than April 30, 2015, file form I-485, Application for Adjustment of Status[1]. By filing Form I-485 when the visa number is current, the child’s age remains frozen even if the visa numbers subsequently become unavailable before the adjustment application is approved. Additionally, along with the Form I-485, the Investor will also be able to file also file for Employment Authorization Documents (EAD) (Form I-765) and Advance Parole which is a travel document (Form I-131). Within 90 days from filing, applicants receive EAD/Advance Parole, which will allow them to work in the U.S., and travel outside of the U.S.
Recommended Course of Action:
In light of the above, it is not necessary for investors to file the I-824 and/or DS-230 immediately to protect aging out children. Instead, we would recommend that our clients wait for their NVC Fee Bills and pay them as soon as possible and within one year of the I-526 approval. Although the DOS confirmed that while the NVC Fee Bills are to be issued on an expedited basis, because of unprecedented delays at NVC, it is taking several months to receive Fee Bills. Therefore, it is our recommendation that for now investors wait for the NVC Fee Bills and pay the visa fees immediately upon issuance.
However, if an Investor has not received a Fee Bill before the one year deadline of the I-526 approval and, therefore, is unable to fulfill the “sought to acquire” requirement, then he/she should take the following affirmative steps:
- Send emails to USCIS and NVC informing them of any derivative children currently between the ages of 18 and 21. In emails to USCIS, request that the approved case be transferred to NVC immediately. In emails to NVC, request that an NVC Fee Bill be issued to the investor and family member immediately to protect the aging out child. Immediately upon visa issuance, the NVC Fee Bill should be paid.
- File Form I-824. Even if the investor indicated that he/she would consular process on the I-526 petition, the investor should file Form I-824, Application for Action on an Approved Application or Petition in an attempt to preserve the child’s protection under CSPA.
- Even if an NVC Fee Bill has not been issued, file an Immigrant Visa packet with NVC.
[1] Note: Investor and family members should not attempt to enter the U.S. on a B1/B2 visa application with the intention of adjusting status as USCIS can deny adjustment applications for pre-conceived intent OR find that the investor or family committed fraud or misrepresentation.
