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Does filing an EB-5 petition “freeze” a minor applicant’s age to prevent them from “aging out”?

A group of teenage friends gathered together to take a photo

EB-5 investor immigration applicants can also file petitions for their unmarried children under the age of 21 as a dependent of the principal investor. With the underlying petition (I-526 in the EB-5 case) taking upwards of 4 years to be adjudicated, and priority dates for the general EB-5 category retrogressing many years, it becomes an important question of how a child’s age is calculated for immigrant petition purposes, as it affects their eligibility for the green card as a dependent.

The CSPA “freezes” a child’s age while the I-526 (and I-485) is pending

The Child Status Protection Act, effective from August 6, 2002, provides a certain degree of relief to applicants whose underlying petitions may be pending for a long time, by essentially “freezing” a child’s age for the duration of however much time it takes for USCIS to come to a decision. The USCIS policy manual explains this as follows:

The applicant’s CSPA age is determined based on how long the applicant’s underlying petition was pending and the applicant’s age when a visa became available to the applicant or the petition is approved, whichever is later. The CSPA age associated with the petition does not change after the filing of the adjustment of status application and is frozen through the final adjudication, regardless of when a visa is authorized for issuance based on the Final Action Dates chart.

The USCIS uses a formula to determine a child’s “CSPA age” by first determining the child’s age as of the date the priority date became current for the applicable category, then subtracting the amount of time it took USCIS to adjudicate the underlying petition (in the EB-5 case, this would be the I-526). If the child’s age is indeed under 21 according to this calculation, the child is eligible to apply for a green card either through adjustment-of-status (I-485) or an immigrant visa. The child must apply for the green card within 1 year of the visa becoming available.

Impact of priority dates to the age-out calculation

A very important caveat to the CPSA “freezing” rule is that the child’s age continues to accumulate if the priority date for that category has never been current under the Final Action Date chart after the underlying petition has been filed.

For example, if a child is 20 years old in January 2020 when the parent files a I-526 while the priority date for that category is not current, and the I-526 is pending for 3 years and 6 months and is approved on June 2023, but the priority date for that category is still backlogged such that a visa becomes available 1.5 years later on January 2025, the child’s age would only have been “frozen” for 3 years and 6 months while the underlying I-526 was pending and not while he was waiting for the priority date to become current. Therefore, in this scenario, the child’s CPSA age will be 21 years and 6 months, calculated by the child’s age 25 when the visa category became current on January 2015, minus 3 years and 6 months while the I-526 was pending. In this case, the child is not eligible for a green card as a dependent.

Application of the CSPA is a very complicated area so it is highly recommended to seek legal counsel if this situation applies to you, so that you can strategize most effectively to make the most of the opportunities that could be open to your family.

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