Visas and the queue

Age determination for children of investors

Also called 8 U.S.C. 1153(h)(5), INA 203(h)(5), age determination for children of alien investors.

8 U.S.C. 1153(h)(5) keeps a derivative child of an EB-5 investor a child after turning 21: if the child's conditional permanent residence is terminated, the principal investor may file one further EB-5 petition within a year of the termination and the child still counts, provided the child is unmarried.

What it decides

The paragraph was added by the EB-5 Reform and Integrity Act of 2022, division BB of Public Law 117-103, approved on 15 March 2022. It reaches only a child who has reached 21, who was admitted under 1153(d) as a conditional permanent resident behind a principal classified under 1153(b)(5), and whose conditional status was then terminated, whether under 8 U.S.C. 1186b or under the good faith investor provision at 1153(b)(5)(M). Three limits attach. The child must remain unmarried. The principal must file the subsequent 1153(b)(5) petition no later than one year after the conditional status was terminated. And no alien may be considered a child under this paragraph on more than one petition filed after reaching 21, so the rescue works once. It is not the Child Status Protection Act calculation and subtracts no pending time, and it gives nothing to a child who never held conditional residence. Where the new petition is approved under the good faith investor route at 1153(b)(5)(M)(ii), a separate provision at 1153(b)(5)(M)(v)(I) requires the Secretary to retain the original priority date and to prevent age-out of derivative beneficiaries.

Governed by 8 U.S.C. 1153(h)(5), headed Age determination for children of alien investors, added by the EB-5 Reform and Integrity Act of 2022, division BB of Pub. L. 117-103; 8 U.S.C. 1153(d) for derivative admission; 8 U.S.C. 1186b and 1153(b)(5)(M) for the terminations it responds to; 8 U.S.C. 1153(b)(5)(M)(v)(I) for priority date retention. The Code's 2022 amendment notes to section 1153 carry no note for subsection (h), and Division BB is not reachable in the govinfo print of Pub. L. 117-103, so the paragraph is cited to the division rather than to a numbered section of the Act.

Related terms

Child Status Protection ActThe Child Status Protection Act is the 2002 statute that can keep a derivative child of an EB-5 investor a child by subtracting the days the parent's petition was pending from the child's age on the date a visa became available, so only adjudication time comes off and the wait in the visa queue does not.
Derivative beneficiaryA derivative beneficiary is the spouse or unmarried child under 21 of an EB-5 investor who, under 8 U.S.C. 1153(d), takes the same classification, the same order of consideration and the same priority date as the investor without filing a petition of their own.
Good faith investor protectionGood faith investor protection is the rule at 8 U.S.C. 1153(b)(5)(M) that keeps an EB-5 petition or conditional residence alive after USCIS terminates the regional center or debars the new commercial enterprise or job creating entity, provided the investor cures within 180 days of being notified and was not a knowing participant in the conduct behind it.
Conditional permanent residenceConditional permanent residence is the status an EB-5 investor and their spouse and children hold for the first two years: full lawful permanent residence, evidenced by a Green Card valid for two years, whose conditional basis must be removed on Form I-829 or the status ends.

Checked against primary sources on 10 August 2026. Back to the glossary