“Aging out” occurs when a “child” (an unmarried individual under 21 years old) becomes ineligible for permanent residency as a dependent in the United States as a result of turning 21 years old while awaiting the approval of his or her permanent residency application. In response to a growing number of minor children aging out due to large backlogs and long processing times for visa petitions, Congress enacted the Child Status Protection Act (CSPA). The CSPA provides some protections for a beneficiary’s immigration classification as a child when he or she ages out due to excessive processing times.
To qualify for CSPA protection for EB-5 purposes, the child must have been under the age of 21 at the time the investor visa application, Form I-526, was filed by the parent of the child with the U.S. Citizenship and Immigration Services (USCIS). Additionally, the child must be under 21 according to CSPA’s age determination calculation. The child’s CSPA age is determined by taking the age of the child when a visa becomes available less the time the I-526 was pending with the USCIS. Essentially, the time between filing the I-526 and receiving approval can be subtracted from the child’s age on the date the visa number becomes available. If the result of the calculation is below 21 years, then the child qualifies for age out protection under the Act as long as he or she applies for permanent residency within one year of the visa becoming available.
For example, a child’s parent files the I-526 on December 1, 2013 and it is approved 12 months later on December 1, 2014. Let’s assume that due to a visa backlog, the visa did not become current and thus the child was not able to apply for the Green Card itself until October 1, 2015. The child’s age on October 1, 2015 was 21 years and 10 months. In this situation, the child will not age out and may be granted permanent residence because her CSPA age is under 21 (21 years and 10 months less the 12 months the I-526 was pending with USCIS equals 20 years and 10 months). Note that a backlog for EB-5 visas has yet to occur because the maximum amount of EB-5 visas has never been used. However, due to the increased number of EB-5 cases being filed each year, there is a very real possibility of a backlog beginning in the near future.
Please note that CSPA was intended to protect children from excessive processing times. The Act was not intended to benefit a child who aged out due to the unavailability of a visa number. Thus, the longer the length of time that a child approaching 21 years of age must wait for a visa number to become available, the less likely that he or she will be protected by the CSPA. In the above example, had the visa back-log been more than 2 months longer, the child would have been over the CSPA age of 21 and would have aged out.
For a summary of the availability of immigrant visa numbers, please refer to the Department of State’s monthly bulletin.