EB-5 planning for children: why age matters

A single EB-5 investment can support permanent residence for the investor's immediate family. Family members who qualify through the investor are called derivatives.

Derivatives do not need to make a separate investment. Each, however, must meet the eligibility requirements individually and is processed separately, with their own forms, civil documents (such as birth and marriage certificates) and medical examination. Derivative family members typically obtain conditional residence together with the investor and later have conditions removed through the investor's Form I-829 petition, filed in the 90 days before the second anniversary of conditional residence. See EB-5 for families for more context.

Family members do not always move through the process at the same moment as the investor. In general terms, a derivative may either accompany the investor, applying at the same time, or follow to join the investor later. Which route suits a family can depend on where each member lives, studies or works.

Timing between the investor and derivatives is linked. For family members in the United States who apply through adjustment of status, the principal investor generally must obtain permanent residence before a derivative's adjustment application can be approved. A derivative's case therefore cannot usually run ahead of the investor's.

Families often plan around practical milestones as well as legal ones: a child studying abroad, school or university admission cycles, and especially the dates on which each child turns 21. A qualified U.S. immigration attorney can map these against the likely stages of the case.

To be a derivative, a child must generally be under 21 and unmarried at the relevant points in the process. The EB-5 process involves several stages, each of which can take time:

1. 01

   Step 1: Investor petition

   The investor files Form I-526E (regional center) or Form I-526 (standalone) and waits for a decision.

2. 02

   Step 2: Visa availability

   For applicants from countries with backlogs, there may be a wait until a visa number is available under the Visa Bulletin.

3. 03

   Step 3: Green card application

   Family members apply for conditional residence through adjustment of status (Form I-485) in the United States or an immigrant visa (Form DS-260) abroad.

4. 04

   Step 4: Conditional residence and I-829

   After 2 years of conditional residence, the investor files Form I-829 to remove conditions for the family.

A child who is 17 or 18 when the family starts may be over 21 by the time a visa is available. Whether that child remains eligible depends on the protections described below. Processing times vary; current estimates are published on the USCIS processing times page (opens in a new tab).

Two legal frameworks are especially relevant. Both are technical, and the descriptions below are general orientation only.

Child Status Protection Act (CSPA)

A 2002 law that, in some circumstances, allows a child's age to be calculated in a way that accounts for time an immigrant petition was pending. In employment-based cases, the calculation generally depends on the date a visa becomes available, the time the petition was pending, and whether the child seeks to obtain permanent residence within the prescribed period, generally within one year of visa availability. Protection is not automatic or indefinite. USCIS policy on how these dates are determined has changed over time.

EB-5 Reform and Integrity Act of 2022

The 2022 Act includes age-related provisions intended to protect derivative children in certain situations. Whether they apply depends on the specific circumstances of the case.

Marital status matters as much as age: a child who marries is generally no longer eligible as a derivative, whatever their age and whatever the CSPA calculation would otherwise show.

1. How old is each child today, and how old will each be at the earliest and latest plausible dates of visa availability?
2. How does visa availability currently look for our country of chargeability in the category we are considering? (See reading the Visa Bulletin.)
3. Would a project in a reserved category affect expected timing for our family? (See reserved visa categories.)
4. If a child is in the United States, for example as a student, could concurrent filing be relevant, and what would it require?
5. What steps would we need to take, and by when, to preserve any CSPA protection after a visa becomes available?
6. If a child may age out despite these protections, what alternatives exist, such as a separate investment for that child?
7. How might marriage of a child before the family obtains residence affect eligibility?
8. Should each child accompany the investor or follow to join later, and how would that fit with studies or work abroad?

Key facts to keep in mind

• A derivative child must be unmarried and under 21, subject to any CSPA protection.
• Derivatives do not need to make a separate investment.
• Each dependent is processed separately and needs their own documents.
• USCIS CSPA guidance and the Department of State's immigrant visa information are the official starting points for questions about age.

Gathering these facts before speaking with an attorney can make the consultation more productive.

Some young adults studying in the United States consider EB-5 either as a derivative of a parent's investment or as an investor in their own right, often funded by a gift from parents. Each route has different requirements. For a child investing directly, the lawful source of any gifted funds generally needs to be documented, including the parents' source. See gifted and borrowed funds and EB-5 for students.

• Read EB-5 for families and EB-5 for students.
• Review the EB-5 process to understand each stage.
• Learn how to read the Visa Bulletin.
• If you have a child approaching 21, consider requesting a consultation to be connected with a qualified U.S. immigration attorney who can review your family's dates.