Age determination for children of EB-5 investors is one of the most technically complex and time-sensitive issues in the EB-5 immigration process. Section 203(h) of the Immigration and Nationality Act (INA), as amended by the EB-5 Reform and Integrity Act of 2022 (RIA), clarifies how the age of an investor’s child is determined in certain situations, including cases where a child has already passed the age of 21 but may still qualify for continued protection.
Section 203(h) of the Immigration and Nationality Act (8 U.S.C. 1153(h)) was amended by the EB-5 Reform and Integrity Act of 2022 (“RIA”) to clarify how in some instances the age of children of investors is determined during participation in the EB-5 program.
Under the RIA and the amendment to Section 203(h)(5), an investor’s “child” who has reached 21 years of age and was admitted as a Conditional Permanent Resident as the child of an investor lawfully admitted for permanent residence under subsection (b)(5) will continue to be considered a child of the principal petitioner. Most importantly, this continued classification as a “child” is maintained for any subsequent EB-5 Form I-526 Petition, provided specific conditions are met.
It may be interesting to note that under U.S. immigration laws, a “child” is defined as any offspring of a parent that is under 21 years old. Once a “child” turns 21, then they are defined as a “son or daughter”.
The following conditions must be met for the child’s status to be maintained for a subsequent Petition. The child must remain unmarried, and the Petition must be filed by the principal investor (the parent or primary investor) no later than one year after the termination of the investor’s Conditional Resident Status. This helps ensure that the child, even after turning 21, can still benefit from the family-sponsored EB-5 immigration process, maintaining continuity for the family.
A crucial limitation in this clause is that no foreign national may be regarded as a “child” for more than one Petition submitted after turning twenty-one. This gives the immigration process boundaries and guarantees that the “child” status is not extended indefinitely.
CSPA vs INA §203(h)(5): Two Distinct Protections
| CSPA (Child Status Protection Act) | INA §203(h)(5) Under RIA 2022 | |
|---|---|---|
| Who does it apply to? | All dependent children in pending EB-5 petitions | Children who received conditional permanent residence that was later terminated |
| How it works | Subtracts petition processing time from the child’s age when the visa becomes available | Allows continued classification as a “child” for a subsequent EB-5 petition |
| Can the child be over 21? | Yes: if CSPA age remains under 21 after subtraction | Yes: specifically after conditional permanent residence is terminated |
| Additional requirement | Must take timely “sought to acquire” action within 1 year of visa availability | Child must be unmarried; new petition must be filed within 1 year of status termination |
| Number of times protection applies | No explicit limit per petition at the initial stage | One time only for petitions filed after age 21 has passed |
Frequently Asked Questions
At what age is a child no longer eligible to accompany an EB-5 petition?
Dependent children are generally required to be unmarried and under 21 years old based on their actual age. However, CSPA age may differ from actual age. A child who has already passed 21 in actual age may still qualify if their CSPA age remains under 21 and all other requirements are met, particularly the timely “sought to acquire” action within 1 year of visa availability.
Does filing Form I-526E automatically freeze the child’s age?
No. Filing Form I-526E does not automatically guarantee protection for the child. CSPA age depends on the petition processing time, when the visa becomes available, the child’s marital status and whether “sought to acquire” action is taken within the required timeframe. All of these factors must be evaluated together.
Does I-526 or I-526E processing time get subtracted from the child’s age?
Possibly, under the CSPA formula. The time a qualifying petition was pending and awaiting adjudication is generally subtracted from the child’s age at the moment the visa becomes available. For example: if the child is 22 years old when the visa becomes available but the I-526E was pending for 2.5 years, the CSPA age may be only 19.5 years, keeping the child eligible.
Does a child who has already turned 21 automatically lose eligibility for the EB-5 petition?
Not necessarily. The child may be protected under CSPA if their CSPA age remains under 21. In certain narrow circumstances after conditional permanent residence is terminated, INA §203(h)(5) under RIA 2022 may also allow the child to continue being classified as a “child” for a subsequent EB-5 petition, provided the new petition is filed within 1 year and the child remains unmarried.
Does a child lose EB-5 eligibility if they get married?
Yes. The child must remain unmarried to qualify as a dependent on an EB-5 petition. This requirement is non-waivable and applies immediately upon marriage regardless of the child’s age.
Are CSPA and INA §203(h)(5) the same thing?
No. CSPA is the general mechanism that uses a mathematical formula to calculate a child’s immigration age based on petition processing time, applied during the initial petition stage. INA §203(h)(5) under RIA 2022 is a separate specialized protection that applies only to children who have already received a 2-year conditional green card under EB-5 and whose conditional permanent residence was subsequently terminated. It may only be used once for a petition filed after the child has passed age 21.
Can families calculate CSPA age on their own?
Families can use the basic formula (actual age when visa becomes available minus I-526E pending time) as a reference point. However the final result depends on multiple legally significant dates and factors. Calculating the wrong visa availability date or processing time can lead to inaccurate results and real harm to the petition. Consulting an experienced EB-5 immigration attorney is essential given the stakes involved.
If you have questions about EB-5 program, please contact us at info@enterlinepartners.com.
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Copyright 2026. This article is for information purposes only and does not constitute legal advice. This article may be changed with or without notice. The opinions expressed in this article are those of Enterline and Partners only.
