Investment capital EB-5.

US law provides that in order to obtain an EB-5 visa, a foreigner needs to invest $ 500,000 or $ 1,000,000 in a commercial enterprise which should create 10 full-time jobs.

The key requirement is that investment capital have legitimate documented sources of origin, from which follow that the investor can dispose of these funds at his discretion.

In connection with the foregoing, a very delicate question arises: will the use of funds received as a gift or as a result of lending be considered acceptable under the EB-5? The answer is difficult even for wise experience immigration lawyers. The fact is that such a general wording requires concretization until it becomes clear what kind of gift & credit we are talking about and what documents the investor has on these resources.

Consider the situation in more detail.

Gift. A simple rule applies: if the reasons why the gift turned out “in the hands of the investor” are understandable and explainable, and if the taxes related to the gift procedure are paid (provided that the gift tax exists), then noone has additional questions. In practice, this is equivalent to the fact that if the gift was received from the next of kin, then the immigration authorities are unlikely to be interested in the reasons that prompted the commission of the gift. Otherwise, it is necessary to have very convincing explanations of why the investor was in the role of the “beneficiary”.

A common and transparent situation is when investment resources are inherited. It is enough to attach documents confirming the fact of inheritance, and the question is closed.

Credit. It should be noted right away that unsecured loans are not accepted for consideration. So if you get a loan secured by your personal assets, then consider that the situation is quite working. A lender may be, for example, an investor-affiliated business located outside the United States. Then you should attach the decision of the Board of Directors of the creditor company that the loan was obtained legally. But in the case of a loan, caution should be exercised, since if the immigration authorities will suspect that the finances of the investor are too overloaded with borrowed funds, then the probability of failure is very high.

It should be borne in mind that at any time confirmation may be requested that repayment of the loan and payment of interest on it are carried out strictly in accordance with the terms of the loan agreement.

It would seem that everything is clear with gifts and loans, but there is one more important detail. Since the source of the funds must be “clean before the law”, now all questions of the “legitimacy of the source” are transferred from the investor to the donor and the creditor. And one should not be misbelieved that the documentary evidence on their part may be superficial.

And the last one. The “farther the distance” the source of investment capital “moves away” from the investor, the longer the decision to issue an EB-5 investment visa is postponed. Alas, this rule is almost always valid ...

We deliberately settled only on the simplest options for using gifts & loans when making investments. But the principle of relations by immigration authorities remains unchanged.