The Immigration and Nationality Act defines a child who as a person under the age of 21 and is unmarried. Parents who apply for non-immigrant and immigrant visas in the United States can include their children (including biological, step, and adopted children) as dependents of their applications.
Parents who are in the United States on non-immigrant visas, such as the E-2 visa, can bring their spouses and underage children as dependents of their visa. Underage children here also refer to individuals under the age of 21. After a child turns 21, they can no longer stay in the United States on their parents’ status and must seek alternative visas or leave the country. If, at any age, the child gets married, they are also no longer eligible for a dependent visa.
If a child dependent turns 21 before being approved for legal permanent resident status, that person is no longer considered a child for immigration purposes, and therefore cannot receive status as a dependent of their parents. A child potentially aging out before receiving immigration benefits as a dependent of the parent becomes a problem when a visa is retrogressed, as is the case for Mainland China and Vietnamese EB-5 investors.
Unmarried children under the age of 21 can be filed as a dependent of the principal investor. Children’s ages are protected under the Child Status Protection Act (CSPA). The CSPA, in short, freezes a child’s age to the priority date of an application, and will continue to freeze their age as long as the application is pending. Once the application is approved, the age unfreezes and the child’s application age is their actual age minus the amount of time the application is pending. This protects the child from “aging out”, or becoming ineligible for a dependent visa for being older than 21, during long pending times. For example, if an application was filed when a child is 20 years old, and the applicant was pending for 2 years, the child’s actual age would be 22, but they will still be eligible for a visa as a dependent of their parents as CSPA will decrease their age to 20 (actual age of 22 minus 2 year of pending time equals 20 years old). This is a very complicated area so you should seek legal counsel if this relates to you.
This becomes a problem when visas are no longer current. CSPA only protects a child’s status when the application is pending. If the application has been approved but the visa is not current, the child would start aging again. Take the example from above, the application is approved after 2 years of pending but it takes another 2 years before the visa is current, by the time the applicant is eligible to apply for a Green Card, the child’s application age will be 22, thus disqualifying them from receiving an immigrant visa as a dependent of their parents.
Visa retrogression is a problem for EB-5 investors from Mainland China and, more recently, EB-5 investors from Vietnam. Vietnamese and Chinese parents with children older than 19 should consult an immigration lawyer to evaluate the best course of action to prevent their children from aging out.
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