USCIS Changes Policy on Child Age Calculation for EB-5

EB-5 investors and Regional Centers should be aware of a new policy that amounts to a much more restrictive method of determining which children will be admitted under parents’ petitions.

One of the biggest advantages offered by the EB-5 Immigrant Investor Program is the ability to bring one’s family to the United States with a single investment. EB-5 can grant visas to a petitioner’s spouse and children under the age of 21 (referred to as “derivatives”) so they can come to the U.S. and work or study without each needing a separate petition. Many EB-5 investors choose to participate in the program so their children can seek educational opportunities in the United States.

But a new release from U.S. Citizenship and Immigration Services (USCIS) has changed how children’s ages will be calculated. This will mean some petitioners’ children, who previously would have been considered “under 21,” will now no longer be able to gain permanent residency under a parent’s petition.

What has changed about how USCIS calculates children’s ages

On August 8th, 2025, USCIS posted an update that states: “We are updating the Policy Manual to clarify that a visa becomes available for the purposes of Child Status Protection Act age calculation based on the Final Action Dates chart of the Department of State Visa Bulletin.”

The stated reason for this, according to the release, is to establish “consistent CSPA age calculation for aliens who apply for adjustment of status and immigrant visas. The Feb. 14, 2023, policy resulted in inconsistent treatment of aliens who applied for adjustment of status in the United States versus aliens outside the United States who applied for an immigrant visa with the Department of State.” While it may be true that the previous standard resulted in inconsistencies, this update chooses a much more restrictive standard for determining a child’s age.

The Child Status Protection Act has been in effect since 2002. As explained by WR Immigration, the CSPA “helps certain children remain eligible for a Green Card past their 21st birthday, protecting them from ‘aging out’ due to long processing delays.” For EB-5 investors, this is extremely important, as the visa process can take many years, such that it’s not uncommon for a child’s 21st birthday to occur during visa processing.

The CSPA generally calculates a child’s age based on the date when a visa “becomes available.” For some visa types, that date may be obvious, but not for EB-5, when visa availability can change drastically while an investor petition is in progress. That’s why on February 14th, 2023, the policy was expanded, so that EB-5 applicants could use the Dates for Filing chart in the Department of State Visa Bulletin for determining when a visa was available, allowing families to “lock in” the ages of their children and gain assurance that delays would not affect their status.

How will USCIS be calculating child ages now? Instead of using the Dates for Filing Chart, USCIS will use the Final Action Dates chart. This affects not just EB-5, but all employment-based visa categories, and the applicable date for each category may change with each month’s bulletin.

What this change means for EB-5 investors

Looking at the bulletin for September 2025, you can see there are two charts for employment-based visas, one listing Final Action Dates and one with Dates for Filing. For EB-5, the key dates are those for the retrogressed countries, China and India.

China’s Date for Filing is October 1st, 2016, while India’s is April 1st, 2022. Under the old system, any child who turned 21 after these dates would be considered “under 21” for visa purposes under the CSPA. But now, USCIS will use the Final Action Date, which for China is December 8th, 2015, and for India November 15th, 2019. For China, that’s nearly 10 month earlier, while for India, it’s almost two and a half years earlier.

As Carolyn Lee explains, “For families from high-demand countries, especially India and China, Final Action Dates may lag years behind Dates for Filing. This means some children may lose derivative eligibility before their Final Action Date becomes current.”

If you were an immigrant investor from India applying for an EB-5 visa and your child turned 21 between November 15th, 2019 and April 1st, 2022, this change could mean the difference between your child being able to immigrate with you and needing their own separate filing and EB-5 investment.

Who is affected by the change to USCIS CSPA child age policy?

According to USCIS, “The new guidance applies to requests filed on or after August 15, 2025. We will apply the Feb. 14, 2023, policy of CSPA age calculation to adjustment of status applications pending with USCIS before August 15, 2025, as these aliens may have relied on that policy when they filed.”

Since August 15th, 2025, has already passed, all new applications will be subject to the new calculations. If you are a Regional Center and your project involves some investors who have already filed and some who haven’t, their petitions may be calculated differently.

The USCIS Policy Manual section on the CSPA goes into greater detail on the exact calculations for different categories, which can be extremely complex and are not something an immigrant investor would want to do by themselves. This underscores the need for competent legal advisors and service providers with expertise in navigating the complexities of this system.

It also underscores the need for keeping detailed records. Not only will investors need to prove their child’s age using available documents, but will need an accurate paper trail to ensure timely filing and accurate petitions. For investors, any delay in filing could mean being subject to different calculations of their child’s age, because each new month could bring a different cutoff date.

That’s why fund administration is important for investors: no matter what happens with the EB-5 project, investors need access to important documents and information so they can get their applications filed on schedule and achieve visas for themselves and their children.