USCIS Begins Approving I-526 Petitions with Minors as Principal Applicants

United States Citizenship and Immigration Services (USCIS) has begun approval of I-526 petitions from principal applicants who were minors when the relevant EB-5 investment agreements were signed.

This is a meaningful change, which has some interesting implications for many EB-5 applicants:

1. New Opportunities for Chinese Investors with Children. By allowing approval of applicants who were minors at the time of investment agreement signing, USCIS has opened a new door for Chinese applicants whose goal is to give their children the opportunity to seek education in the US. At present, EB-5 investors from China may wait as long as 10 years or more to obtain their Green Card. This means that many children will “age out” of their EB-5 eligibility and will be unable to use this program to obtain a Green Card. With this new change, it is possible for an I-526 to be filed with a minor as the principal applicant. This creates a new pathway for people to help their children file I-526 applications before they “age out”, and is likely to increase EB-5 demand from China.
2. USCIS Will Continue to Question Key Facets. Historically, USCIS has seemed open to the idea that there is no minimum age requirement for EB-5 applicants. Furthermore, USCIS has stated that a minor may sign their I-526 form without the signature of a parent or guardian. Traditionally, USCIS has focused on ensuring that the minor has sufficient legal capacity to enter into the relevant contracts. The goal for USCIS is to ensure that even if a minor signs the I-526 form, the investment cannot be repudiated and that relevant EB-5 investment agreements will hold up.
3. Ownership by Minor Through Uniform Transfer to Minors Act. In the past it has been possible to gain approval for Form I-526 petitions in which a minor’s parent acts as a custodian. This is made possible by the Uniform Transfer to Minors Act. Under this act, a parent is able to sign relevant agreements using a form explicitly mandated in the Act to establish custodianship. While acting as custodian, the parent has control over the investment in the new commercial enterprise. However, in actuality the title in ownership of the investment is vested in the minor. Through correct use of the mandated language from the Uniform Transfer to Minors Act it is possible for the parent to create a binding, non-voidable commitment to investment on behalf of the minor. This commitment is binding under applicable US and state laws.
4. Changes to Travel Restrictions for Minors Traveling Without Their Parents. USCIS has in the past shown concern regarding minors traveling to the United States without their parents. Many EB-5 applicants who start the petition as minors will be over 18 by the time they have obtained a Green Card, however this is an important consideration in the years before the Green Card is received. The U.S. Customs and Border Protection (“CBP”) usually requires notarized consent from both parents to allow a minor to travel within the U.S. It is also possible for parents to select someone residing within the U.S. to act as legal guardian when their child receives permanent U.S. residency.

We are quite relieved with this new development from USCIS. This should help to relieve substantial existing issues, especially for Chinese investors.

That said, it is important to be sure that you are able to correctly respond to any questions from USCIS. For this reason, we suggest that anyone hoping to access this new path to the EB-5 program speak to an experienced EB-5 immigration lawyer.