Wolfsdorf on Minors as Primary EB-5 Applicants

Bernard P. Wolfsdorf, Esq. and Joseph M. Barnett, Esq., June 27, 2016 - "This article should be read together with the blog co-authored with Catherine DeBono Holmes, Esquire, a top securities Lawyer, “Suggested Procedures and Possible Options for Accepting Minors as Investors in EB-5 Investment Funds.”

With the waiting line for Chinese EB-5 investors getting longer every month (presently almost 2 ½ years) many Chinese investor parents are concerned their derivative beneficiary children will turn 21 before an EB-5 visa number will be available and that the child may therefore “age out.”  Unfortunately, the Child Status Protection Act only allows for subtraction of the number of days the Form I-526 petition was pending (usually about 1-1 ½ years) from child’s biological age.  Consequently, many investors are questioning whether it may be better (for both derivative beneficiary eligibility reasons, and even for tax reasons) to have the minor child be the primary EB-5 applicant.

Unfortunately, like most matters related to EB-5, the issue whether a minor may act as the principal EB-5 immigrant investor is complex and involves federal immigration law, state contract law, federal and state securities laws, and the law of the place where the investor resides.  Legal counsel, including corporate, securities and immigration attorneys should explain these risks when offering advice to parents about their children filing as the primary investor.

Presently some Regional Center projects are accepting minors, and others are not.

This is an emerging issue and with adjudications taking over one year, the EB-5 community may not know USCIS’ position on minors filing as principals for some time. [More...]"