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CSPA and EB-5: Using Investor Visas to Protect Against Aging Out

As discussed in a previous Reddy & Neumann, P.C. article, the EB-5 set aside program is presently the only green card program that is “current” for Indian and Chinese nationals. And while there are advantages of the EB-5 program in general, one of the most interesting aspects is the advantages the EB-5 program can provide for aging out children, and an alternative to children who have already aged out. Using EB-5 can trigger the Child Status Protection Act (CSPA) analysis in a way that might help prevent a child from aging out. If you are interested in the EB-5 program, sign up for more information and a free preliminary case analysis here.

What is the Child Status Protection Act?

            The Child Status Protection Act (CSPA)is a U.S. immigration law that aims to protect the age-based eligibility of children that are derivatives of their parent’s green card process. Particularly In the case of employment-based immigration, the CSPA addresses situations where the child of a principal beneficiary may age out (turn 21) before the immigration process is completed. The law creates a process by which a child’s age “calculation” can be changed depending on certain circumstances. Note, CSPA is applicable to many different categories including family-based immigration, special immigrants with I-360s, employment-based, EB5 category, asylum, refugee, and diversity visa. However, this article will focus on CSPA as it pertains to employment-based and EB-5 categories.

            Typically, the Immigration and Nationality Act (INA) defines a child as an individual that is unmarried and under 21. In the employment-based immigration context, children are allowed to be derivatives to their parent’s employment-based green card benefit, and thus are eligible to receive a green card when their parent receives a green card, as long as the child has no inadmissibility concerns of their own. Under the INA alone, when a child turns 21 before being granted lawful permanent residence, they are no longer qualified for the green card benefit and “age out” of the benefit.

            Enter the Child Status Protection Act that went into effect on August 6, 2002. Congress recognized that there were a number of children aging out due to visa processing times (and now due to backlogs) and sought to create a solution. CSPA doesn’t change the definition of a child in the INA, but rather provided a new way for an individual’s age to be calculated, called the “CSPA age”, to see if the calculation allows the individual to be treated as a child for purposes of green card derivative eligible. Note, CSPA did not change the classification that the individual be unmarried. A more definitive guide to CSPA can be found here.  

How does CSPA Work for EB-5?

            To qualify for CSPA and the CSPA age, there are three things that must be prevalent:

  • The immigrant visa petition (for purposes of this article, the I-526) must be approved;
  • An immigrant visa (green card) must be available; and
  • The child must seek to acquire the immigrant visa within one year of an immigrant visa becoming available.

 

Going through each requirement is important when analyzing CSPA. To start, the immigrant visa petition must be approved, if it gets denied, CSPA does not come into play. While that may take some time, especially for I-526s where there is no premium, that is where the CSPA age calculation becomes available. Assuming the other requirements are met, an otherwise aged out, unmarried child can subtract the length of the pending immigrant visa petition was pending from their actual age to get the CSPA age. For example, if the individual is 21 years and 6 months old on January 1, 2024, and the I-526 was pending for 7 months, the induvial CSPA age is 20 years and 11 months. Thus, if a visa is available and the individual sought to acquire within one year of the visa becoming available, their CSPA age will have “locked” and they will be treated like a 20 year old for purposes of adjusting status with their I-526 parent.

As noted, one of the requirements to qualify for CSPA protection is that an immigrant visa must be available. In the past, this meant that your priority date must be current based on the final action date (chart A of the employment-based visa bulletin). However, in February 2023, USCIS announced policy guidance changes to how the date that an immigrant visa becomes available. Now, depending on which chart USCIS will be utilizing that month for employment-based green cards, that date can be used as the date that an immigrant visa is available. For example, USCIS has announced that for the January and February 2024 visa bulletins, it will use the filing date (Chart B) for employment-based preference categories. 

Given that USCIS policy now allows for concurrent filing of the I-526 and the I-485, there is more that individuals need to be made aware of and keep in mind for CSPA. However, it is not only important to watch which chart USCIS is using when the I-485 and I-526 are filed, but also the chart USCIS is using when the I-526 is approved.

For example, if an individual files for their I-526 and concurrently files the I-485 for them and their derivative 20 year old in February 2024 based on the filing date chart, they will likely qualify for CSPA as long as the I-526 is approved. However, if, for example, the I-526 is approved in September 2024 and USCIS is only using final action date chart, the child’s age will only lock if the priority date is current on the final action date chart. In the event that the child’s age can’t lock immediately, once a visa becomes available, i.e., the priority date becomes current or, in October 2024 USCIS decides to accept the filing date chart, then the child can subtract the time the I-526 was pending from their actual age to get their CSPA age and can make a determination if they still qualify.

 If this sounds confusing, just know that there are entire books written to the Child Status Protection Act, and consider consulting with an attorney that has experience in CSPA.

            The final step is that the child must seek to acquire an immigrant visa petition within one year of the immigrant visa becoming available. For those seeking adjustment of status, this step will be completed by the filing of the I-485. For those that are consular processing the I-526, this step will be completed with the filing of the DS-260.

            Note, while USCIS has changed its guidance on if a visa is available to include the filing date chart if USCIS is accepting petitions under the filing date chart that month, Department of State (DOS) has not changed its CSPA guidance. This means that those seeking an EB-5 visa through consular processing, the final action date would have to be current in order for the CSPA calculation to come available. 

            Overall, given the current trends of EB-5, especially those seeking to use the set aside program, the EB-5 program might be more beneficial for CSPA and CSPA calculations as visas are current for all nations under the January and February 2024 visa bulletin. This may change in the next year or so, so keep this in mind when considering your options for CSPA. Further, as the fiscal year progresses, USCIS is likely to change to only accepting the final action date chart for purposes of filing adjustment of status, especially as we get to August and September. While the EB-5 set asides remain current, this is not too detrimental, but if there is retrogression this could cause a change in the analysis.

EB-5 Alternatives for Children Already Aged Out

            For children that have already aged out, there is a possible option for them that families may find beneficial. It is certainly unique, but one possible solution would be to have the aged out child be the EB-5 investor. I will note, that this is going to be a very case by case basis, and families will have to consider the pros and cons to this strategy before going about this endeavor. This option has been something our firm has been asked about for families where the parents want to ensure the aged out child gets their green card and the parents are okay still waiting a couple years for their employment-based to become current. Notably, the parents cannot be a derivative to their child’s EB-5 petition.

            There is nothing that prevents the aged out child from being the EB-5 investor. If, for example, the parents want to gift the child the investment capital for the EB-5 investment, the source of funds analysis remains the same with the added step of showing the gifting of the funds. The EB-5 petitioner would still have to show how the parents acquired the investment capital as part of the I-526 petition.

             Again, this is something that would need to be discussed with an attorney in more detail so the family is fully aware of the pros and cons of this option, however, the option is certainly available.

Conclusion

The Child Status Protection Act (CSPA) offers critical protections against visa wait times for children of employment-based and investor green card applicants. By calculating a child’s CSPA age and meeting eligibility requirements, high-skilled immigrants can safeguard their children’s eligibility. The EB-5 immigrant investor program intersects uniquely with CSPA qualification rules, creating alternative options when employment-based green cards stall. With USCIS policy changes in early 2023 expanding CSPA applicability, investors must review updated guidance on visa availability rules and age calculation formulas. However, given the unique situation of the current EB-5 program and visa availability, the EB-5 set aside program offers an opportunity to utilize CSPA that non-current employment-based I-140s do not. Discussing this with an immigration attorney well-versed in EB-5 and CSPA ensures proper application strategy when leveraging these programs to avoid children aging out.

If you are interested in the EB-5 program, sign up for more information and a free preliminary case analysis here.

Reddy & Neumann, P.C., located in Houston, Texas, has been serving the business community for over 25 years and is Houston’s largest immigration law firm focused solely on U.S. Employment-based immigration. We work with employers, employees and investors helping them navigate the immigration process quickly and cost-effectively.

By: Steven Brown

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Steven Brown is a Partner at Reddy & Neumann, P.C. where he works in the Non-immigrant visa department and leads the Litigation Team. His practice covers all phases of the non-immigration visa process including filing H-1B, L-1, E-3, H-4, and H-4 EAD petitions. In the last two years, Steven has successfully handled over 1,000 non-immigrant visa petitions including filing petitions, responding to any necessary Requests for Evidence, and drafting motions and appeals. He has also become a key resource for F-1 students that seek guidance on properly complying with the F-1 visa regulations and any OPT or CPT issues they may have. Additionally, Steven holds a weekly conference call for companies that are part of one of the largest organizations for IT Services companies in America.