For investments greater than the minimum investment amount, only the funds necessary to satisfy the investment requirement must be accompanied by lawful source-of-funds documentation. The EB-5 program’s minimum investment amounts are $900,000 for targeted employment area (TEA) projects and $1,800,000 for non-TEA projects.
United States Citizenship and Immigration Services (USCIS) places great importance on the lawful source-of-funds requirement. Investors must work closely with their immigration attorneys to provide all of the necessary evidence in Form I-526, Immigrant Petition by Alien Investor. If Form I-526 does not clearly show that the funds originated legally, USCIS will send a request for evidence (RFE) or simply deny the petition. The USCIS Policy Manual states that investors “must demonstrate by a preponderance of the evidence that the capital invested, or actively in the process of being invested, in the new commercial enterprise was obtained through lawful means.” This means that investors must prove the legality of their funds with a certainty of at least 51%.
To prove that the EB-5 capital was sourced lawfully, investors must procure several documents tracing the funds back to their original source. The necessary evidence will vary depending on the investor’s situation and the source of funds they choose. Common sources of EB-5 funds include salary payments, real estate sales, stock proceeds, gifts, inheritances, and secured loans. Regardless of the source of funds used, investors should provide their personal income tax returns for the previous five years. If this information is unavailable in the investor’s country, they can submit a declaration from a tax professional instead. All documents not written in English must be translated.
It is likewise important to show how the EB-5 investment was made; USCIS must have evidence that the funds reached the new commercial enterprise’s (NCE’s) business account or the project’s escrow account. Moreover, the investment must be made before Form I-526 is filed.