Can a minor be the investor for EB-5 immigration purposes, and if so, should he or she be?
The question posed is one of the hardest questions to answer in the EB-5 Industry today and is also one of the hottest topics under discussion. My response is not intended to be comprehensive and presumes a few facts to be true. First, that both the regional center involved and the escrow bank being utilized will accept a minor as an applicant, and that the project is in a state which makes a contract signed by a minor voidable rather than void. Second, the minor is currently 17 years old. Third, that the parents or any siblings who may exist are not expected to immigrate with the potential investor. Fourth, the answer presumes that all other issues militate in favor of approval of the I-526, including but not limited to source of funds / actual gifting of the funds, immigrant intent etc. Finally, the reader must understand that these issues have not been adjudicated either by USCIS or by any court with jurisdiction over such matters, and therefore, the response is subject to change if the law develops. It is expected that the law in this area will develop within the next year to two and a half years, as the initial applicants who have not reached the age of majority have their I 526 applications adjudicated by USCIS.
To Answer the Question
The answer is given in broad strokes, and nuances are not dealt with. Further, specifics related to applicable law and different strategies that could be used are not discussed. If the reader would like a more detailed response and some additional strategies, I would be happy to speak with him or her. Remember that as with all legal issues in the United States, careful attention to the facts of each situation is necessary.
My view is that the answer is yes, the minor child can be the applicant. My view has a couple of reasons, and I recommend certain precautions be taken to ensure that when the I 526 is adjudicated, the chances of success are heightened. Please keep in mind that this issue is new, and that there are many other potential reasons why USCIS could deny the application.
State and Immigration Laws for Minors as Investors
A 17-year-old may be an applicant under my view because USCIS considers anyone over 14 to be an adult for purposes of modifying status inside the United States, so it is likely that USCIS would view the 17-year-old as an adult for immigration purposes. Second, considering the present priority date of February 2014, adjudication is almost certain to take place after the investor reaches the age of majority.
The biggest concerns are state laws regarding contracts and whether the funds are really “at risk” when any contact entered by a minor can be voided by the minor after the minor reaches the age of majority by simply declaring it void. Because a 17-year-old born in mainland China will almost certainly reach the age of majority between now and the date on which an I-526 is adjudicated, I would suggest that to protect the minor investor, he or she would sign a ratification of all agreements on or immediately following his or her 18th birthday. Such a ratification would wipe out the rescission rights that he or she had when the funds were placed at risk, and therefore the funds would be and would have been at risk since they were deposited. This also has the added benefit of bolstering his or her claim to have immigrant intent.
In Another Setting…
If the minor investor was going to turn 18 between now and the date on which an I-526 could be ready (considering due diligence on the investment, source of funds analysis, review of all relevant documents, the preparation of the I-526 and memorandum in support), this will not be an issue, as the minor would reach the age of majority before filing.
New Commercial Enterprise
Another potential concern is the corporate structure of the New Commercial Enterprise. If it is an LLC or a corporation, as opposed to a limited partnership, it is possible that no one under the age of 18 may invest. This is dependent upon the law of the state of organization or incorporation.
At Oppenhuizen Law Firm, PLC, we are happy to discuss these matters further and begin working with you to complete your or your child’s application, under appropriate circumstances. My services are directed at building a relationship with my clients, and providing comprehensive legal counsel to them from the date they retain me through the date that their I 829 is approved and the conditions are lifted. The fees I quote are for limited representation, but I am always available to assist through the process, and will provide thorough reviews of any issues my clients see as well as a budget to address such issues if they fall outside of the scope of the services initially offered.
We provide tailored and personalized service to each one of our clients, and will never treat your situation as anything other than the unique case that it is. We look forward to hearing from you.