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
International Institute of Humanitarian Law’s Department of International Refugee Law and Migration Law featured Fragomen and Senior Manager Gemma Hyslop in 2023 Annual Report.
Media mentions
Senior Manager Shuyeb Muquit shares how the UK's five-point plan will impact the business landscape.
Blog post
This blog covers the newest changes to UK migration policies impacting health and care workers that took effect on 11 March 2024.
Fragomen news
This strategy paper summarises the most significant changes to German migration law that took effect on 1 March 2024.
Blog post
Cosmina Morariu and Merve Bilgic share considerations for foreign start-ups interested in Canada's Start-up Visa Program.
Blog post
In diesem Blog erörtert Managerin Maja Sugui die visafreie Einreise nach China für Geschäfts- und Businessreisen von bis zu 15 Tagen.
Media mentions
Partner Louise Haycock discusses the latest immigration developments affecting employers and the workforce in the United Kingdom.
Media mentions
Partner Jill Bloom shares how the recent overhaul of the H-1B visa is impacting US employers.
Blog post
Senior Manager Laxmi Limbani discusses what UK space sector recruiters can expect with the introduction of the UK Home Secretary's five-point plan.
Podcast
Partner Srinivas Ramineni and Associate Jake Paul Minster discuss how IT consulting employers can prepare for the FY2025 cap registration process.
Blog post
This blog provides an overview of the UK Home Office's measures aimed at reducing net migration.
Video
Associate Justin Pires discusses the impact of the USCIS ruling to increase certain immigration and naturalization benefit request fees, coming into effect on April 1, 2024.
Media mentions
International Institute of Humanitarian Law’s Department of International Refugee Law and Migration Law featured Fragomen and Senior Manager Gemma Hyslop in 2023 Annual Report.
Media mentions
Senior Manager Shuyeb Muquit shares how the UK's five-point plan will impact the business landscape.
Blog post
This blog covers the newest changes to UK migration policies impacting health and care workers that took effect on 11 March 2024.
Fragomen news
This strategy paper summarises the most significant changes to German migration law that took effect on 1 March 2024.
Blog post
Cosmina Morariu and Merve Bilgic share considerations for foreign start-ups interested in Canada's Start-up Visa Program.
Blog post
In diesem Blog erörtert Managerin Maja Sugui die visafreie Einreise nach China für Geschäfts- und Businessreisen von bis zu 15 Tagen.
Media mentions
Partner Louise Haycock discusses the latest immigration developments affecting employers and the workforce in the United Kingdom.
Media mentions
Partner Jill Bloom shares how the recent overhaul of the H-1B visa is impacting US employers.
Blog post
Senior Manager Laxmi Limbani discusses what UK space sector recruiters can expect with the introduction of the UK Home Secretary's five-point plan.
Podcast
Partner Srinivas Ramineni and Associate Jake Paul Minster discuss how IT consulting employers can prepare for the FY2025 cap registration process.
Blog post
This blog provides an overview of the UK Home Office's measures aimed at reducing net migration.
Video
Associate Justin Pires discusses the impact of the USCIS ruling to increase certain immigration and naturalization benefit request fees, coming into effect on April 1, 2024.