Qualifying Investment Capital
Cash, equipment, inventory, other tangible property, cash equivalents and indebtedness secured by assets owned by the foreign national entrepreneur, provided that the entrepreneur is personally and primarily liable and that the assets of the new commercial enterprise upon which the EB-5 visa petition is based are not used to secure any of the indebtedness.
All capital shall be valued at fair-market value in United States dollars. Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) shall not be considered capital for EB-5 investment purposes.
Source of Capital
- • Capital does not include loans made by the investor to the venture. However, the investor may borrow the investment money, if it is secured by assets owned by the investor, provided the investor is personally liable for repayment of the loan.
- • The investor may receive a gift of funds, if all applicable taxes required by law have been paid.
Required Minimum Investments
- • The minimum qualifying investment in the United States is $1.05 million.
- • Targeted Employment Area (High Unemployment or Rural Area). The minimum qualifying investment either within a high-unemployment area or rural area in the United States is $800,000.
Verification of Lawful Fund Sources
Proof that the capital has been invested by the actual investor is required. Assets acquired directly or indirectly by unlawful means such as criminal activities are not acceptable capital. In practice, USCIS is very strict about reviewing the legitimacy of funds.
The documentation should trace the capital from the investor directly to the investment. The USCIS also requires that the investor provide documentation that proves the source of their investment funds was obtained legally. Proof of documentation is provided through previous tax returns and financial statements. Income tax records should be submitted, preferably for a period beyond the five years required by the regulations. Also provide savings and personal investment records to prove that even if a petitioner has not earned a substantial annual income, there is a credible claim that the necessary funds were accumulated over time.
A petitioner cannot establish the lawful source of funds merely by submitting bank letters or statements documenting the deposit of funds. Without documentation of the path of the funds, the petitioner cannot meet his burden of establishing that the funds are his own funds. Simply stating without supporting documentary evidence is not sufficient for the purpose of meeting the burden of proof.
An investor may receive a gift of funds however in that case the USCIS will require information and track the source of the funds from the person who gave the gift.
When Proving the Source of Funds Obtained by Loan
Clearly, it is difficult enough to prove that one’s own funds are, indeed, one’s own. When the funds are obtained by loan, there may be even greater scrutiny. The regulations expressly prohibit using loan money for EB-5 Visa purposes if the loan is obtained by using the new commercial enterprise as security. It does not matter if the loan is from a third party lender or the enterprise itself. In either case the petition will be denied if the loan is secured by the new commercial enterprise.
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The information on this website is not to be considered legal advice. Such information is intended to educate members of the public generally and is not intended to provide solutions to individual problems. Readers are cautioned not to attempt to solve individual problems on the basis of information contained herein and are strongly advised to seek advice from an experienced immigration attorney regarding specific case situations.
