
Country / Territory
Related contacts

Related contacts

Related contacts

By: Mitch Wexler
When making a qualifying EB-5 investment into a new commercial enterprise, the regulations require that the petitioner present evidence “[t]o show that the petitioner has invested or is actively in the process of investing, capital obtained through lawful means.” What exactly does this mean? Essentially, one can use a variety of different sources for their investment, so long as they can illustrate (1) that the source of funds was lawfully obtained; and (2) they are able to trace the path of funds from the initial source to the EB-5 enterprise.
With the creation of the dedicated Immigrant Investor Program Office in Washington D.C. and the hiring of new staff that ranges from a variety of technical backgrounds and are holders of advanced degrees, USCIS has been issuing Requests for Evidence (RFEs) that require a much higher level of detail and scrutiny as compared to before. Some of the recent issues raised in the RFEs as it relates to source of funds are as follows:
- Administrative Fee: If the EB-5 project is under the umbrella of a Regional Center, USCIS has required that evidence be submitted showing that the petitioner has paid the requisite administrative fee and to provide documentation illustrating that the payment for the administrative fee, although separate and apart from the $500,000 or $1,000,000 EB-5 capital investment, was derived from a lawful source. The administrative fee is an additional administrative/management fee that is paid by each applicant to the Regional Center;
- Sale of Property: If a property’s value increased significantly over the years such that its sale value is significantly higher than its purchase value, USCIS is requesting evidence to show the value of the property at the time of the sale (i.e. an appraisal report). Moreover, USCIS has contended that a sales contract and financial statements are not sufficient evidence to document that the sale took place. Other corroborating evidence, such as tax payments or updated deeds are required as well. Lastly, where a mortgage was obtained to purchase the initial property, USCIS has sought evidence illustrating that the mortgage has been paid off prior to the petitioner’s sale of the property;
- Loans: Where the applicant is obtaining a loan from his/her company in which he/she is a stakeholder in, USCIS has required evidence to illustrate that the applicant’s personal assets are used to secure the loan. USCIS has then gone on to examine the company’s balance sheets for the year in which the loan was obtained to calculate the proportion of the owner’s equity that the applicant is entitled to for that year, based on his/her percentage ownership interests in the company to ensure that the owner’s equity in the company is at least equal to or in excess of the loan obtained; and
- Accumulated Income: Where the petitioner’s investment is derived from accumulated income, USCIS has requested information such as tax returns, employment verification letters, and bank statements showing the steady growth of income over the years. USCIS has confirmed that an employment verification letter, by itself, is not sufficient objective evidence of claimed income, especially where the company is 100% owned by the applicant and a family member.
Country / Territory
Related contacts

Related contacts

Related contacts

Explore more at Fragomen

Media mentions
Senior Associate Oliver L. Ashworth and Director David Iannella discuss recent US immigration and visa changes and what German businesses and travelers should know.

Media mentions
Senior Manager Louise Senior highlights how UK hospitality employers face heightened risk as visa sponsors and why it is important for them to understand their responsibilities to avoid penalties.

Fragomen news
Fragomen announces the expansion of Nomadic to the Nordics, providing end-to-end support for short-term business travel and cross-border compliance.

Blog post
Immigration Supervisor Michael Salas Guzman discusses Costa Rica investment residency options and requirements for foreign investors, retirees and rentiers.

Media mentions
Managing Partner for the Middle East and Africa Murtaza Khan discusses why immigration due diligence is important in GCC mergers.

Fragomen news
Fragomen announces the opening of new offices in Wrocław and Gdańsk, welcoming Partner Karolina Schiffter to its Poland practice.

Blog post
This blog post by Manager Virginie Todesco and Immigration Consultant Chiara Caredda, available in English and Portuguese, outlines the requirements, benefits and application process for obtaining Luxembourg citizenship.

Awards
Fragomen and Regional Partner for the Asia Pacific Mark Buchanan were recognized at the 2025 FEM APAC EMMAs.

Awards
Partner Archana Iyer won the "Innovation Award" at The New York Law Journal's 2025 New York Legal Awards.

Media mentions
Senior Counsel Mitch Wexler discusses how USCIS’s new rule could potentially increase enforcement and affect how applicants interact with the US immigration system.

Blog post
Assistant Business Immigration Manager Raga Rasuanta discusses Indonesia’s post-election immigration strategy and its shift toward balancing openness to global talent with increased regulatory scrutiny.

Media mentions
Senior Associate Oliver L. Ashworth and Director David Iannella discuss recent US immigration and visa changes and what German businesses and travelers should know.

Media mentions
Senior Manager Louise Senior highlights how UK hospitality employers face heightened risk as visa sponsors and why it is important for them to understand their responsibilities to avoid penalties.

Fragomen news
Fragomen announces the expansion of Nomadic to the Nordics, providing end-to-end support for short-term business travel and cross-border compliance.

Blog post
Immigration Supervisor Michael Salas Guzman discusses Costa Rica investment residency options and requirements for foreign investors, retirees and rentiers.

Media mentions
Managing Partner for the Middle East and Africa Murtaza Khan discusses why immigration due diligence is important in GCC mergers.

Fragomen news
Fragomen announces the opening of new offices in Wrocław and Gdańsk, welcoming Partner Karolina Schiffter to its Poland practice.

Blog post
This blog post by Manager Virginie Todesco and Immigration Consultant Chiara Caredda, available in English and Portuguese, outlines the requirements, benefits and application process for obtaining Luxembourg citizenship.

Awards
Fragomen and Regional Partner for the Asia Pacific Mark Buchanan were recognized at the 2025 FEM APAC EMMAs.

Awards
Partner Archana Iyer won the "Innovation Award" at The New York Law Journal's 2025 New York Legal Awards.

Media mentions
Senior Counsel Mitch Wexler discusses how USCIS’s new rule could potentially increase enforcement and affect how applicants interact with the US immigration system.

Blog post
Assistant Business Immigration Manager Raga Rasuanta discusses Indonesia’s post-election immigration strategy and its shift toward balancing openness to global talent with increased regulatory scrutiny.