To comply with the requirements of the EB-5 program and U.S. laws, foreign investors must document the lawful source of any funds used to make up the amount invested in a new commercial enterprise (NCE) in the United States. Additionally, any administrative costs associated with the investment amount must be covered using lawfully sourced funds. Investors must keep these requirements in mind when compiling documentation for an I-526 petition for conditional permanent residence.
An investor can use funds accumulated from his or her employment salary to make up the investment amount of $1,800,000 required by the EB-5 program, or $900,000 if the NCE is located in a targeted employment area, if he or she can provide United States Citizenship and Immigration Services (USCIS) with sufficient documentation to prove the lawful source of that amount. To that effect, an investor using his or her salary to fund an investment must include the following documents with the I-526 petition:
- The investor must submit a capital source statement explaining in detail that the investment funds are derived from his or her salary. This must include the name of the company with which the investor has been employed as well as records of the investor’s salary payments and the total amount accumulated over time. The investor must likewise provide bank statements proving receipt of those salary payments.
- If the investor has relied on a spouse to cover living expenses to save his or her salary for the EB-5 investment amount, the spouse must also provide a capital source statement explaining in detail his or her employment history and income over the time period during which the investment amount was accumulated.
- The investor must submit his or her employment contract as well as an income certificate from the employer supporting the salary payments over time as claimed in the capital source statement.
- Additionally, the investor must provide his or her personal income tax returns for the previous five years if available. If not, as may be the case for investors from countries where income tax is not collected, the investor may submit a declaration from a tax professional from his or her country of origin detailing the required information and explaining why records cannot be furnished.
If an investor uses salary payments to make up only part of the investment amount, the lawful source of the remaining amount must also be accounted for. This may require the investor to submit further documentation, such as a gift letter or property sale record, in addition to the materials listed above.
Investors and regional centers should seek the services of financial advisors and attorneys experienced with the unique requirements of the EB-5 program to ensure that any documents submitted with the I-526 petition support the lawful source of the investment funds. As lawful fund sourcing is required not only by the EB-5 program but also by U.S. law, investors and regional centers can avoid legal consequences and improve the likelihood of a successful application by ensuring that all financial documentation is thorough and accurate.