How to Protect a Child Derivative with the Increasingly Longer Chinese EB-5 Waiting Line
This is the second part of a three-part series on understanding the impact of the Chinese EB-5 waiting line on derivative children. This blog only addresses issues relating to Chinese-born nationals, since presently only the Chinese-born (or more accurately, persons chargeable to the China quota) are impacted.
Part 1 described the emerging issue of the Chinese EB-5 waiting line.
To review Part 1, please click here. Part 2 describes the steps that may be taken to protect children from “aging-out.” Part 3 will discuss potential administrative and legislative solutions.
- A common scenario today is as follows: After waiting more than a year since investing a minimum $500,000.00, your immigration attorney or Chinese migration agent calls with good news that U.S. Citizenship and Immigration Services (“USCIS”) has finally approved your Form I-526 Immigrant Petition by Alien Entrepreneur (“Form I-526”), and that you may start to plan the move to the United States and get ready for the final stage of consular processing abroad or filing an adjustment of status in the U.S.
- Your child who was 20 years old at the time of filing, is now over the age of 21, which is a critical age for inclusion in the family’s immigrant visa petition. Under the Child Status Protection Act (“CSPA”), the child’s CSPA age is calculated by subtracting the number of days that the Form I-526 was pending with USCIS (from date of receipt to date of approval, including any period of administrative review) from the actual age of the applicant on the date that the visa became available. Note that the petition filing and petition approval dates are the only relevant dates. The time waiting for a priority date to become current is not taken into account.
- Since you know your child can deduct only the time the Form I-526 was pending with USCIS, you anxiously reach out to your immigration attorney demanding a clear answer as to whether your child will be included. Instead, your immigration attorney states that you have to take steps to “seek to acquire” conditional permanent resident status within 12 months of the visa becoming “available.” What steps should you take?
- First, complete the Form DS-260 Immigrant Visa Electronic Application (“Form DS-260”) and pay the Fee Bill online. However, you may notice that neither your spouse nor children are listed on the Fee Bill. This has occurred because the actual Form I-526 is defective, in that it doesn’t require the primary applicant to list his/her derivative beneficiaries, and even if you included the information, USCIS is not forwarding the full file to the National Visa Center (NVC) only sends the I-526 form. So despite having included your family members’ birth certificates, and your marriage certificate in the Form I-526, they have been ignored.
- To remedy this immediately notify the National Visa Center (“NVC”) by sending an email to NVCeb5@state.gov and attach copies of your family members’ respective birth certificates and your marriage certificate that you may have previously submitted.
- NVC will likely issue a revised Fee Bill including your spouse, and the unmarried children under the age of 21 if they think there is a chance the child will be eligible for derivative processing. You must immediately pay the Fee Bill and complete the Form DS-260, however you notice that the Fee Bill for your eldest child (who is now 22 years and 4 months old) has been omitted. There may be cause for alarm, as NVC may feel your child is not protected under the CSPA and doesn’t want to collect a non-refundable fee. However, remember that the final determination of a child’s age under the CSPA can only made at the final green card interview at a U.S. consular office, so instruct (or retain) legal counsel to submit a CSPA eligibility brief on your child’s behalf. Note NVC is currently reviewing procedures to allow applicants to pay the fee bill, but they may be required to acknowledge that it will not be refundable. Stay tuned, more information to follow on this important issue.
- Please note that filing the now-defunct Forms DS-230 for each family with NVC no longer satisfies the “seek to acquire” requirement. This is new guidance.
- If the principal applicant is in the U.S. and is eligible to file a Form I-485 Application to Adjust Status to Lawful Permanent Residence (“Form I-485”), file the Form I-485 immediately. Doing so is likely a viable option for CSPA purposes. However, a visa number must be available according to the Visa Bulletin Chart A, Final Action Date (“FAD”), in order to file a Form I-485. If the principal applicant is in the U.S. but his/her children are abroad, after receiving Form I-485 approval, file a Form I-824, Application for Action on an Approved Application or Petition (“Form I-824”) with USCIS. You may also file a Form I-824 concurrently with the Form I-485. After approval, USCIS forwards the Form I-824 to the NVC, which will begin processing the immigrant visas for a derivative spouse or child residing abroad. Note, while a simple solution would be to recognize Chart B as the time when a visa number is “available,” the Department of State has recently indicated that only chart A may be used for CSPA lock in purposes, at this time.
- To “seek to acquire” conditional permanent resident status, an applicant must have one full year of visa availability. Accordingly, if the FAD retrogresses within one year of visa availability, and the applicant has not yet sought to acquire conditional permanent resident status, the one-year period starts over once a visa number becomes available again, and the child’s age under the CSPA is re-determined using the subsequent visa availability date. On the other hand, if retrogression occurs before a visa had been available for one full year, any actions taken within one year of the visa becoming available that satisfies the “seek to acquire” requirement will be sufficient to lock in the child’s CSPA age, as of the first day the visa subsequently became available.
- In October and November 2015, the U.S. Department of State (“DOS”) allowed EB-5 applicants to file Form DS-260 and pay the Fee Bill, or if in the U.S. legally, file a Form I-485 with USCIS based on Visa Bulletin Chart B, Date for Filing. This allowed children to use the USCIS designated lock-in procedures to “freeze” their age under CSPA. Wolfsdorf Rosenthal LLP hopes DOS will allow the use of Chart B, Date for Filing (DFF) again in October and/or November 2016 to file forms I-485 adjustment applications.
This post originally appeared on Wolfsdorf Immigration Law Group. Copyright © 2016 Wolfsdorf Connect - All Rights Reserved. Reprinted with permission.
Bernard Wolfsdorf is the managing partner of the top-rated law firm, Wolfsdorf Rosenthal LLP (www.wolfsdorf.com), and the past national president of the 14,000-member American Immigration Lawyers Association (AILA). Established in 1986, Wolfsdorf Rosenthal LLP is known worldwide for providing exceptional quality legal services. With 19 lawyers and offices in Los Angles and New York, the firm was recently listed as a top-tier immigration practice by Chambers & Partners with several of the firm's attorneys listed in the 2015 International Who's Who Legal. Mr. Wolfsdorf specializes in EB-5 investment immigration in addition to the full range of global immigration matters.
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