EB-5 Immigrant Investor Program “Dual Filing”: A Remedial Opportunity for “Aged-Out” Children
EB-5 Immigrant Investor Program “Dual Filing”: A Remedial Opportunity for “Aged-Out” Children
Attorneys:Attorney Jeff Zhengquan Xie,Attorney Jiarui Yin,Attorney Qian Zhao,Attorney Haochun Ling, Xiang Xiao
Many parents file EB-5 immigrant investor applications primarily to help their children obtain permanent residency status, facilitating the children’s future study and employment in the United States.
Numerous children, however, miss the opportunity to immigrate to the U.S. with their parents due to being “aged-out”. The term “aged-out” refers to a scenario where a child, listed as a derivative applicant in an immigration petition, turns 21 years old by the time the principal applicant receives a green card or an immigrant visa.
For many children studying in the U.S., being aged-out means they cannot obtain green cards along with their parents. As a result, they worry about securing employment before graduation, and even after landing a job, they face the uncertainty of winning the H-1B visa lottery.
In some extreme cases, parents successfully immigrate to the U.S., but their aged-out children are forced to leave the country because they do not hold green cards.
The primary cause of children aging-out is the prolonged waiting period stemming from the limited number of immigrant visas allocated to the EB-5 program.
Another contributing factor is the former EB-5 application process, which required applicants to first file Form I-526 (Immigrant Petition by Alien Entrepreneur) and wait for its approval by U.S. Citizenship and Immigration Services (USCIS) before submitting Form I-485 (Application to Register Permanent Residence or Adjust Status).
Plagued by USCIS inefficiency, the approval of Form I-526 often took an excessively long time. By the time the approval notice arrived, the available immigrant visa slots had already been exhausted. Consequently, even EB-5 applicants residing in the U.S. were unable to file for green card status adjustment.
Many of these aged-out children were indeed minors when their parents first submitted the EB-5 petitions. But as the lengthy waiting period dragged on, they grew into adults.
By the time they would have otherwise qualified for green cards, these young adults generally lack sufficient financial means to file EB-5 applications on their own and still rely on parental financial support.
In 2022, the U.S. Congress enacted new legislation governing the EB-5 Immigrant Investor Program, introducing a favorable policy for foreign nationals residing in the U.S.: the option of “dual filing”.
Under the current rules, EB-5 applicants can submit Form I-485 (status adjustment application) simultaneously with Form I-526 when filing their immigrant investor petitions.
This dual filing option resolves the immigration status concerns of many international students in the U.S., enabling them to stay in the country permanently. Once Form I-485 is filed, applicants are eligible to obtain an Employment Authorization Document (EAD) and an Advance Parole travel document, which allows unrestricted entry and exit from the U.S. All they need to do afterward is wait patiently in the U.S. for their green card applications to be approved.
Thus, children who have already aged-out and missed the chance to immigrate with their parents can now file their own Form I-526E petitions and concurrently submit Form I-485 via the dual filing process.
Similarly, children who have not yet aged-out but are at risk of doing so in the next few years may also file Form I-526E and take advantage of dual filing to submit Form I-485.
It is important to note, however, that this dual filing window is expected to be temporary and will not remain open indefinitely. Once the new EB-5 visa quotas are announced to be fully exhausted, the dual filing option will no longer be available.
Therefore, for children who have already aged-out and missed out on green card opportunities, or those at imminent risk of aging-out and being unable to immigrate with their parents’ EB-5 petitions, as long as they are physically present in the U.S. with valid nonimmigrant status, they should initiate the EB-5 application process as soon as possible. This will allow them to secure permanent residency through dual filing before the temporary window closes with the depletion of available EB-5 visa slots.
The above overview is prepared by XIE LAW OFFICES,LLC. to provide legal information to the Chinese community. It is primarily for academic discussion purposes and does not constitute legal advice on specific cases. If you already have legal representation, please consult your own attorney, who is familiar with the details of your case. Clients of Xie & Associates Law Firm, as well as readers who have not yet retained legal counsel, may contact Attorney Xie for specific legal questions. If you wish to reprint this document, please do so in full without any deletions, and clearly indicate the source.
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