Saturday, April 25, 2015

Does the Derivative Child Beneficiary Have to take steps before May 1, 2015 to freeze the child’s age?

(Source: Bernard Wolfsdorf) After speaking to many other experienced immigration lawyers, there appears to be no clear guidance on what to do if the I-526 petition is approved prior to May 1, 2015, before the China EB-5 cut-off date is established. This blog purports to advise what the options are, but each case must be evaluated by an expert in immigration law. The State Department has published a “White Paper” that appears to give comfort to many. It indicates that the child derivative can take the necessary steps after May 1, 2015 when the cut-off for Chinese applicants starts, even if the EB-5 visa number is not current, or is not available and that taking such steps within the designated time will effectively freeze the child’s age and allow the child to immigrate together with his or her parents.

The USCIS Adjudicators Field Manual that incorporates a recent policy memorandum, and appears to be the most comprehensive guidance on the topic, provides guidance to Immigration Officers adjudicating applications to adjust status in the U.S. The memo also appears to say that by taking the designated action (such as paying the fee bill or filing forms DS 230 or DS 260) within the requisite time period freezes the child’s age, even though the visa number isn’t current or available. The State Department’s Foreign Affairs Manual (FAM) which is guidance to consular officers, appears to say no, a visa number must be available to freeze the age, whereas the Department of State’s White Paper says yes, it does freeze the child’s age. There are also rumors the FAM will be revised to say yes, taking the requisite action will freeze the child’s age even though a visa is not available at that time.

I have communicated with another EB-5 expert Ron Klasko with whom I have done speaking panels on the topic, and he points out that, “The government is not bound by anything other than statute, regulations and precedent decisions.  Specifically, the government is not bound by AFM, FAM or cables/memoranda.” His view is the statute is consistent with the “white paper” and there is no limitation to filing while the visa is still available.  The FAM provision that appears to add that limitation is arguably unenforceable as being ultra vires the statute.  The AFM appears to be more consistent with the statute and more consistent with the position taken in the “white paper”.  It has reportedly been stated that the FAM will be amended to be consistent with the new position as stated in the “white paper”. 

Therefore, the White Paper is arguably as good or better “law” than the FAM.  In any event, it is difficult or impossible to believe that the government would try to reverse the White Paper position to the detriment of investors and defend a position in court that it is not bound by the advice that everyone relied upon. With all of that said, different lawyers are still advising Migration Agents and clients, differently. Some are saying it’s not necessary to take action by May 1, 2015, and that children approved before or after the establishment of the cut-off date, can still take steps to seek to acquire permanent residence after May 1, 2015 as implied in the White Paper. Our firm is taking the more conservative position that every effort should be taken before May 1, 2015 to protect potential age-out children. If the White Paper is incorporated in the FAM, great, we will have rushed and taken steps that need to be taken anyway so our clients can still sleep better. I do hope the FAM is updated soon so everyone is clear.

What Steps Can be Taken to “Seek to Acquire Permanent Residence Status” Before or After May 1, 2015?
  • If the NVC Fee Bill has been issued pay it. If the NVC fee bill erroneously left out the child derivative, as many of them have recently, one can consider paying via cashier’s checks as explained on the State Department’s website. If the fee bill has been issued, one can also file forms DS 260 but it is not necessary to file the forms to freeze the child’s age.
  • If no fee bill has been issued by NVC, then consider filing the old form DS 230 with the NVC.
  • Finally, while there is a $405 filing fee, consider filing form I-824 with the USCIS.
  • If the principal applicant is in the U.S. in valid status, together with the beneficiary, and is eligible to adjust status, the best option is usually to file an I-485 adjustment of status application.

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