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Minors as Principal Applicants

During the EB-5 Immigrant Investor Program Stakeholder Engagement on July 28, 2016, USCIS-IPO confirmed that there is no age limit under current immigration regulations. A minor is not precluded from filing I-526 Immigrant Petition By Alien Entrepreneur as the principal applicant. This comes as great news for parents looking to help their minor children immigrate to the United States.

There are still steps, however, investors should take to ensure a qualifying investment. In many countries, a minor is legally deemed to lack the competency to enter into and be bound by the types of contracts necessary to make a qualifying EB-5 investment. In most countries, this can be easily overcome by using the correct language and parental signoffs. During the engagement, USCIS confirmed that a minor petitioner and his or her immigration counsel should evidence in form I-526 that the contract cannot be voided. Petitioners may want include a statement from local counsel on the enforceability of the contract. 

It should also be noted that a petitioner (in this case, a parent) is not permitted to transfer their pending or approved petition to a dependent nor any other person. In addition, gifting a unit or subscription to the child is not permitted. The principal applicant must be personally and primarily liable in order to qualify.

The concept of minors as principal applicants surfaced in 2015 as backlogs continued to grow for mainland China-born investors. The increased backlog has advanced the likelihood that Chinese dependents filing as derivatives under their mother or father’s petition will age out while waiting for their priority date. Concerns have grown over the past 3 months as the Department of State Visa Bulletin has shown no priority date advancement. The backlog suggests that older children likely will be of age by the time they are granted Conditional Permanent Residence. This revelation left hundreds of pending investors wondering if their older children will be able to immigrate to the United States with the rest of the family. In the months leading to this announcement, immigration attorneys patiently awaited guidance from USCIS before assisting minors with this process.

Minors may now move forward with assurance. 

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