Thursday, October 12, 2017

4 Tips for EB-5 Principal Applicants with Diminished Capacity, Such As Autism

(Source: Bernard Wolfsdorf & Joseph Barnett) In the past few months, our firm has been approached by parents with children with Autism or other special needs on whether such children are able to obtain an EB-5 visa.  Although we have not received affirmative guidance from the U.S. Department of State (“DOS”) or USCIS, it appears this is a viable option, though each situation will be reviewed on a case-by-case basis.

Here are four things to know on this topic:
  1. Can Child with Special Needs be Principal Applicant for EB-5? It’s potentially viable for such a child to be the principal EB-5 applicant with the appointment of an appropriate legal guardian who can act on the child’s behalf.  Prior to making an EB-5 investment, the legal guardian should ask the Regional Center to affirmatively opine on whether this special need investor would qualify for their sponsored offering, as it may be necessary to provide additional formalities to cover the lack of capacity in decision making, as required by 8 C.F.R. § 204.6(j)(5). 
  2. Medical-Related Ineligibility. One issue that is likely to come up during an EB-5 consular interview is whether the child is inadmissible pursuant to INA § 212(a)(1) for a medical-related ineligibility.  The mere presence of a physical or mental disorder does not, by itself, render an applicable ineligible.  Evidence that the child does not pose a threat to the property, safety, or welfare of the child or others and that the child’s special needs is not associated with harmful behavior should be presented to a consular officer.  See 9 FAM 302.2-7(B)(2).
  3. Public Charge Concerns. Another issue that may arise during an EB-5 consular interview is whether the child is inadmissible pursuant to INA § 212(a)(4) for likely becoming a public charge.  While EB-5 investor families generally have substantial income, it’s critical to present evidence of adequate finance and support in the U.S. (either family or professionals) to overcome any consular concerns. 
  4. Consular Interview Preparation is Key. Probably the most important aspect in obtaining an EB-5 visa is preparing the child and parents for the visa interview so that the latter is familiar with the issues that may arise.  They should come to the interview with a letter from a Regional Center’s or new commercial enterprise’s counsel affirming the child’s sufficient capacity to be an EB-5 investor and participate in the management of the enterprise.  A letter from immigration counsel opining that all requirements found in 8 C.F.R. § 204.6 are satisfied, despite the special needs of the child, should also be prepared.
At the end of the day, it appears that DOS and USCIS (in adjustment of status proceedings), may evaluate applications by children with Autism or other special needs on the merits with regards to the issues stated above.  The burden is on the applicant to show admissibility.

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