Minor Children At Risk of Aging Out May File as Principal EB-5 Investors, With Careful Planning
Key Takeaways
- Murthy Law Firm reports it is legally possible for a minor to be the principal applicant for an EB-5 immigrant investor petition.
- If the child is under 18, investment contracts must be valid and enforceable where signed; guardianship, court approval, or trust structures may be needed.
- EB-5 requires a qualifying investment ($800,000 in a targeted employment area or infrastructure project; $1,050,000 otherwise) and proof of lawful source and path of funds.
- This strategy can help families worried a child will “age out” at 21 as a derivative, but timelines and visa availability vary by country and category.
- Early coordination with immigration, securities, tax, and state law counsel is strongly recommended.
What’s new
A new advisory from the Murthy Law Firm says a minor child who risks aging out of eligibility as a derivative beneficiary may file an EB-5 petition as the main applicant. EB-5 allows foreign nationals to apply for permanent residence through investment in a U.S. enterprise; petitions are filed with USCIS (U.S. Citizenship and Immigration Services) on Form I-526 or I-526E. There is no minimum age in immigration law for being an EB-5 investor, but for applicants under 18, contract law becomes the gatekeeper: any investment agreements must be legally valid and enforceable in the jurisdiction where they are executed.
Why it matters for families
In employment-based cases, children can immigrate as derivatives only if they are under 21 and unmarried; even with the Child Status Protection Act (CSPA), visa retrogression and processing backlogs can cause some to “age out.” Making a child the principal EB-5 investor can create an independent path to a green card, especially in visa categories that currently have availability. Under the EB-5 Reform and Integrity Act of 2022, the required investment is $800,000 in a targeted employment area (TEA) or qualifying infrastructure project, or $1,050,000 elsewhere. Reserved visa set‑asides for rural, high‑unemployment, and infrastructure projects may improve availability, though backlogs persist for some countries in unreserved categories.
Practical constraints and planning
Because many jurisdictions treat contracts signed by minors as void or voidable, families may need to use tools such as court‑approved guardianships, trusts, or custodial accounts to ensure enforceable agreements and compliance with partnership or fund documents. The investor must be the principal owner of the invested capital, and USCIS requires meticulous documentation of the lawful source and path of funds; gifts from parents are generally permissible if the donor’s funds are lawfully sourced and the gift is properly documented, with separate tax considerations. For those in the U.S., concurrent filing of adjustment of status (Form I‑485) may be possible if a visa number is immediately available in the relevant EB-5 category; others will proceed via consular processing abroad.
Bottom line
This option is legally viable but highly fact‑specific. Families concerned about a child approaching 21 should consult experienced immigration counsel early, and coordinate with securities, tax, and local counsel to structure valid, enforceable investment agreements and a compliant paper trail. Acting well before the child’s 18th birthday can preserve options and reduce risk.
Source: Original Article