Hi everyone. This is Sam Silverman, managing partner at EB5 Affiliate Network. Thank you for taking time to join us for today’s webinar. Today, we’re going to be discussing EB-5 source-of-funds best practices with a focus on South Korean nationals during today’s webinar. If you have any questions, please use the chat box on your screen and submit them, and then, at the end of the webinar, we will try and cover as many of those questions as possible. Also, if you have to leave early, or if you need to review something again, reference this webinar—we will be posting this on our YouTube channel, a full recording of the entire webinar. And if you’re interested in getting the slides, please email us at the email listed here—firstname.lastname@example.org—and we’re happy to share the slide deck as well.
So, quick overview of what we’re going to cover today. First, a little bit about the panelists on today’s webinar and EB5 Affiliate Network. We’ll talk about what is source of funds, how does it fit in with an EB-5 investor’s petition, some common issues that EB-5 investors need to be aware of, specifically best practices for South Korean nationals. We’ll talk a little bit about a specific case study, and then we’ll open it up for questions at the end. And, again, for any questions, use the chat box, and we’ll address those in the order they come in at the end. So, before we jump into the slides, for those considering a project for EB-5, it’s important to determine if a project qualifies as a targeted employment area, which means that the minimum investment is $900,000 instead of $1.8 million. And we have a new tool that we just launched on our website—our TEA map.
You can type in the address of any project in the United States or Puerto Rico and immediately determine if the project qualifies for TEA status and also generate a letter confirming that completely for free. So, we’ve had almost 5,000 people use the tool since it launched just a few weeks ago, so it’s very effective and a free way to see if a project will work as a TEA area. Also, for additional source-of-funds information and general information about the EB-5 program in general, for developers and investors, we just recently published our new EB-5 guidebook. This is our sixth edition, so it’s as up to date as can be with the latest rules and regulations about the program and about how to structure projects for investors. So, it’s available on Amazon, or if you want a digital copy, we have a free PDF download as well at eb5guidebook.com. So, as I mentioned earlier, I’m Sam Silverman, managing partner at EB5 Affiliate Network. I’m joined by my partner, Mike Schoenfeld, who’s in the middle here, and I’ll let Mike jump in and quickly introduce himself as well.
Perfect. Thanks, Sam. And really appreciate everybody taking the time to join this webinar today. So, a bit of background… I’m Mike Schoenfeld, one of the managing partners at EB5AN, and both Sam and I used to previously work at the Boston Consulting Group, before we started this company. A part of our focus in EB-5 has been bringing institutional knowledge and transparency into the EB-5 process, and we’ve grown our business over the past seven years now to become one of the market leaders in EB-5.
So, as a bit of context, a little bit about EB5AN—today, we’re a national regional center operator and fund manager across all of our sponsored EB-5 projects. We have more than 1800 investors from over 60 different countries. We got started in 2013. We have many regional centers covering more than half of the United States and 100% approval on projects associated with our licenses. So, this is a map of our regional center coverage area, to give you an idea of where we can sponsor projects around the country.
And this is a global map showing where some of our investors come from around the world. Today, we have the pleasure of having Evelyn Hahn join us as a panelist on today’s webinar talking about best practices for source of funds for South Korean nationals. Evelyn is the managing partner at David Hirson & Partners, one of the top EB-5 immigration law firms in this space. And we’ve worked with Hirson & Patners on several different projects and matters over the last seven years. And Evelyn has been deeply involved in the EB-5 space. And so, I’ll let her jump in and introduce herself and share a little bit about how she got into EB-5 and what some of the issues and things that she’s encountered working with Korean investors have been over the years.
All right, Sam, thank you. Hi, everyone. My name is Evelyn Hahn, and I am the managing partner at David Hirson & Partners. We’re located Costa Mesa, California, and we have our second office in Seattle, Washington. It is a great honor and a pleasure for me to speak to this audience, who are interested in learning more about the source-of-funds strategies pertaining to South Korean investors. And I’m really grateful to the EB5 Affiliate Network team for inviting me and giving me this great opportunity to participate in this awesome webinar. So, why and how did I get into the EB-5 world? So, first of all, I became an immigration attorney myself because I was an immigrant myself. So, I came here at the age of 14 when my father, who was an executive of the top conglomerate company in South Korea on an L-1 visa. And then we adjusted our status to an EB-1 green card for my father’s company. And after my father decided to quit his job and stay in the US for our better education instead of going back to Korea, we began to experience a very, very challenging immigrant life, where we all had to work multiple different jobs to literally survive.
So, my parents, who didn’t speak the language [English] at the time, you know, were deceived by different business partners and lost their life savings. And I was also falsely accused of causing a car accident, which was not true. And I got involved in multiple different lawsuits. So, basically, I spent my entire twenties representing myself and my family in nasty litigations. And that’s when I realized that I needed to know the law to protect myself and my family. And I also wanted to help others who found themselves in a similar situation I was in because it was a very, very painful experience. So, that’s how I got into law in general. However, my dream has always been to do something related to business. So, after I became an immigration attorney, I was constantly looking for an option where I could get myself somewhat involved in, you know, business-related work while practicing law.
And when I found out about EB-5, I literally had this aha moment because I realized that it is the perfect option for me to practice law and, at the same time, indirectly participate in the business side of practice by working with the multiple different parties involved, such as regional center developers, business plan writers, economists, and security counsel. That’s how I ended up practicing immigration law. And I literally feel like every day I’m living my dream because it’s just so fascinating and interesting to practice as an EB-5 attorney. But before I joined David Hirson & Partners, I used to focus my practice on other, non-EB-5-related business immigration at a big firm, which I still actively practice today, and I speak fluent Korean. And while I manage our entire law firm, I also lead our Korean practice.
So, ever since I joined David Hirson & Partners, I actively look for opportunities to work with Korean investors because I, myself, was a Korean American, and I’m an immigrant myself, and I speak fluent Korean. So, that’s when I reached out to migration agents in Korea. I, you know, travel to Korea almost one or twice a year. They have a migration conference twice a year in Korea, and I always attend it, and I try to get myself connected with the migration industry in South Korea. And that’s when I started working with Korean investors. And also, I still do have a lot of friends and relatives who all live in Korea. So that’s how I also get individual investors not through the migration agents. So, that’s how I got myself into practicing specifically with Korean investors who are interested in EB-5. So, our firm offers national and international clients nearly 40 years of experience in immigration law.
So, we provide a full range of legal services, and we cover all types of immigration, not just EB-5 but all types of other areas of U.S. immigration law too, as well as family immigration. And we also handle corporate immigration compliance, criminal record evaluations with those who have criminal records and want to see if there’s any opportunity to apply for waivers… we can do the evaluation and let you know. And also we handle immigration litigation—especially now it is really critical to be able to file an action in federal court when cases are denied for absolutely unreasonable reasons, because that is happening. So, we take those cases to court and fight the issues until the end. So, our firm’s founding partner and managing partner, David Hirson… actually, it’s very interesting because he was present in the Senate in Washington, DC, back in 1990s, when the EB-5 bill was marked up.
And Senator Biden, now president elect, was debating the proposed new EB-5 law. So, he was there in the Senate, and then, after the EB-5 bill passed into law, he filed one of the very first EB-5 cases in the US in 1991. Now, we’ve filed thousands of EB-5 petition for our clients. And the highest volume of EB-5 petitions that we’ve handled was probably around 400 to 500 cases per month because we had multiple rushes, right? So, that’s the volume that we’re talking about. So, it’s been a privilege and honor for me to be his partner and representing our firm in my capacity as a managing partner. So, our firm was named the top EB-5 immigration law firm of the year 2012 and has been a long-time member of the policy committee IIUSA.
Thank you for the introduction. That’s extremely helpful, and it’s good to know where you’re coming from. So, now we’re going to jump a little bit into what is source of funds and how does it actually fit into the EB-5 process. And in the first section, we’re going to go over relatively quickly about the overall source of funds and the common ways that you would document it. And then, we’ll really jump into how that applies to South Korean nationals. So, when you think about the I-526 petition, there’s two parts to that petition. The first part is about the project itself. So, in EB-5, you’re making an investment in an NCE, a new commercial enterprise, that’s going to deploy the money, and it needs to create 10 jobs through the JCE [job-creating entity]. So, that’s step one of the petition. Step two of the petition is all about the individual. And what that really comes down to is about the source of funds, of showing how that $900,000 was legally obtained and having all of the backup related to obtaining those $900,000 in showing that it does make its way into the actual project itself.
Thank you, Mike. So, as we dig into the different common sources of funds in most investors’ situations, there’s typically four different potential sources. First, ordinary income. So, that’s just working at a job, getting paid a salary. Second, capital gains—you buy a stock, it goes up, you sell it, you have liquidity, you use those funds to invest. Third, you receive a gift from a family member, a friend, or you inherit funds from someone. And fourth, loans from family, friends, or companies, right? So, it’s pretty much the cardinal three—marry, earn, inherit—in terms of sources of funds, right? So, the key is that you have to document and be able to provide all the paperwork to be able to illustrate how you obtained at least the $900,000 or $1.8 million, depending on the project. If you’re able to document how you obtain those funds legally, you don’t have to document anything above that, or anything other than that—you just have to show exactly where that $900,000 or $1.8 million came from. You don’t have to prove anything about your total net worth or, you know, other questions. It’s just, where did that $900,000 come from? How did you get it? And if there was tax due on it, you have to be able to illustrate that that tax has been paid and the funds were obtained by you.
So, we’ll quickly cover this now, and Evelyn, we’ll go into more detail later, but ordinary income—what does that usually mean? It’s basically just W2 income. If you’re in the United States, dividends, business-related sources. If you have documents that are not in English, you’re going to have to have those translated. You have to show that the funds were actually moved, and that the funds that were moved were the ones that taxes were paid on. So, it’s not enough to just show that you pay tax, but you actually have to show the tracing of the funds, showing how they came from your employer, how you got them, and then how they moved from the employer to you, and then from you into the EB-5investment vehicles. So, it’s two things—it’s sourcing and tracing. So, where did it come from? And then, how did you get it today? And how did it flow from its original source into the EB-5 investment that you’re now an investor in?
Capital gains? Pretty much the same—the same rules apply here, has to be in English, and translated, if not already in English; you have to show taxes have been paid; and you have to show the tracing of where the money came from and how it’s gone, since you originally obtained it, into the EB-5 investment.
Gifts or inheritance—same thing here. The main difference here is that you have to show that any applicable inheritance taxes were paid, or if there was a gift tax return that was required to be filed, how that was done—make sure everything was done in compliance. And then, in relation to the loan, this one’s a little bit more complicated. If you’re taking a loan, you have to demonstrate that the loan was against assets that are at least equal to market value at the time of the loan for the amount of the loan. So, if you have a building worth $200,000, but you’re getting a loan that’s $500,000, that’s not going to work. It has to be a loan that’s at least equal or less than the current market value of the asset that’s serving as collateral for that loan. And then, the same rules apply of being in English and then showing appropriate taxes have been paid and the tracing, showing the flow of the funds since the sale or since the loan was executed.
Okay. So, now we’re going to dive into those same categories, but with a lens on Korean investors, and obviously, you know, these rules and situations are gonna differ substantially by country. Since a lot of investors earned or obtain capital from sources outside of the country, this is going to be important, really, to work with someone, an immigration attorney, who has a lot of experience working with clients from that specific country. USCIS has seen hundreds of investors come in from Korea over the last, you know, 20 years from the program. Korea is one of the largest sources of EB-5 investors. So, USCIS knows generally what types of documents are available in Korea, and they’re going to be on the lookout for that specific set of documents if they see the investor is coming from Korea versus China, right? The types of documents are going to differ substantially between countries. So, that’s why it’s important to really understand what you’re going to need and what’s going to be required and what may not be required.
All right. Thank you, Sam. So, this slide lays out all the important pointers, the ordinary and common, you know, issues that come that come up for the South Korean investors’ source of funds. And then, we’re going to have another slide that talks about the very particular specific issues pertaining to Korean investors. So, number one, ordinary income, and number two, capital gains, number three, gifts or inheritance from family or friends, and number four, loans from family or friends or companies. So, we have a slide for each topic, which I’m going to go over in very great detail. Number one, ordinary income. So, South Korea, fortunately, has a very well-organized banking and tax system, unlike other Asian countries, meaning everything is electronically systemized and well organized. So, you won’t be able to say, “Oh, because I used to, you know… because my income… I used to work for a company back in the 1980s, due to poor recordkeeping, I don’t have any tax records.”
You won’t be able to say that because you can retrieve your tax records all the way back to the 1980s. So, let’s say you work for company A, and then you work for company B after working for company A for five years. Sam, I hear my echo. Okay. And then, you work for company C after working for company B. So, you work for company A, B, and C, and now you have to prove that you worked for the companies A, B, and C for X number of years and for X amount of salary, and you’ve paid X amount of taxes. All of that information will be memorialized in document called “certificate of income for wage and salary” or “certificate of global income.” So, there are two types of certificate of income that memorialize the income earned and tax paid for the years worked and companies who were worked for, so searching income for wage and salary is for those who work as a W2.
And it is missing from this slide, but there’s another type which is just called a certificate of global income. That is for those who work for themselves, like self-employed, or have their own business. So, you can have both, right? You can be work as a W2 and also be your own boss, have your own business. Then, you’re going to have global income tax, which shows your wage and salary earned, while you work as a W2, like, you know, you’re employed by another, third-party company, and also you’ll have, you know, income that you earned as a business owner. So, you know, it’ll literally show you all the years you worked, all the income earned from which company, and even the amount of tax in a very organized table format. So, it is impossible to explain to USCIS, saying that, “Oh, I earned X amount back in 1990. Due to poor recordkeeping, I don’t have documentation.”
Literally. You just have to go to the tax office, punch in your number and your personal data, and you’ll be able to retrieve that documentation. So, it is really beneficial for us, especially when our clients want to and need to prove their initial source of funds, which usually tends to be ordinary income. Then, all we have to do is go back to the tax office and retrieve their tax records, either search “certificate of income for wage and salary income” or “[certificate of] global income tax.” Also, software issues, employment verification letter… there’s a form that each company utilizes. So, it is fairly easy to obtain an employment verification letter, and if not, then we can always use a template letter, which can be very flexible as long as it contains all the information that we need.
Date, income earned, the amount of income earned, you know, your title, you know, and your wage, the amount of wages that you earned, and also bank statements. So, we have to, like Sam mentioned in the previous slide, not only do we have to prove the source of funds, but also we have to prove the path of funds. So, after we retrieve all the tax certificates, we also have to show the trail of the money, the path of funds, by including the bank statements showing the deposit of your income. So, bank statements, unlike tax certificates, are hard to retrieve because most of the banks in South Korea do not retain those records for a longer period of time. So, usually, we ask for five years, but if five years is too much, then, you know, whatever the date that you can procure. So, for bank statements, especially the recent bank transactions, we tend to always ask our clients to retrieve and procure the documents as much as they can, but as long as they have the income certificate, because it is a government certificate, and we can clearly show their income earned, [it’s fine].
Usually, even though they cannot find all the trail [paperwork], all the path of funds all the way up, usually USCIS has been very lenient on that issue. And I don’t think I’ve ever had any issues proving the income part of source of funds.
Excellent. I think one question people listening may have is, so what’s the difference between, let’s say South Korea and… getting this, how does that compare to other countries like… other large countries like Vietnam and China? How much easier is it to prove income in South Korea compared to them?
Oh, so, for example, China and Vietnam, for those who don’t really know how other countries work—so their tax systems and banking systems are not as systematic and organized as South Korea. So, oftentimes, in China, the investors won’t have any old tax certificates to prove that they actually earned money and paid tax. So, for those clients, we will have to rely on secondary evidence, meaning we would have to ask our clients to ask their friends and, you know, whoever the third-party coworkers that they used to work with, or whoever can, you know, sign that declaration confirming their employment and salary was paid and taxes paid. So we would, without any choice, we would have to rely on that secondary evidence. It is not primary evidence, it’s secondary. However, if it’s the system and if our clients cannot obtain that documentation because of the system in that country, we would then have to rely on those declarations signed by a third party.
So, I can confirm the fact that you actually worked for the company, earned this amount of money, and paid this amount of texts. So—and in Vietnam, a lot of people use gold. So, you know, a lot of people purchase gold, and they store gold inside their house, instead of even depositing cash in their bank. So, they don’t even have bank accounts. They don’t even have anything to prove but gold that they recently sold, gold that they had that they stored in their house for several years. So, it’s even challenging because they not only are not able to, you know, secure all the documents to prove how they earned money to purchase the gold, but also there’s no paper transactions to show the purchase of gold. And, you know, because they didn’t deposit the money in a bank account, it’s not like they have paper transactions to prove all the source and path of funds.
So, if that’s the case, what we do is we try to find a publication about the culture, the norm back in the day in Vietnam, as to why people had to rely on purchasing gold instead of using the bank to save their assets in their bank account. And then we include these articles, the published articles explaining the culture and their norm and their background as to why they were purchasing gold that way, USCIS can have a better understanding as to why—“Oh yeah, maybe it was the norm in the country, and without any choice they had to rely on purchasing gold and storing the gold in their house.” So if we can find publications to explain about the situation in that particular country, then we always try to include publications and articles. If not, then in addition to declarations, instead of only relying on declarations. Do you have any other questions for me? Should I move on to the next?
Let’s shift over to capital gains.
Can you please move back to the income? I’m going to briefly talk about business. Yeah. I just want to make sure that I did not. So for the self-employed business owners, in addition to the certificate of income and employment verification letters, you would have to provide a certificate of business registration and a certificate of closure of business. So, even for the business owner, the tax documentation would conveniently have, show, reflect the opening of the business and the closure of the business. So all you have to do is literally print out those certificates showing that you opened the business and you closed the business. It will show that the, you know, grand opening, date of closure, so that we… it is very, fairly easy for us to demonstrate that this person had the business, right? And then, like I mentioned, the certificate of global income shows both business income and salary that they earned as a W2. And also, if they can find invoices and purchase orders issued by the business, it’s always helpful, and business bank statements. I always recommend five years—try to find five years, and if not, then, you know, whatever that you can find, but the more, the better, of course, plus personal bank statements, if related. Okay. Next, move on to the next slide.
Okay. Capital gains. This is an interesting topic because especially real estate real property is something that is, I mean… real estate in general is just such a sensitive political issue everywhere right now, but especially in Seoul, it’s explosive, literally. So factories as well have flown into to real estate to an unusual degree because there’s not really that many options available out there for individual investors. So, for example, the country’s domestic stock market is good, but not that great. So, as of March —just an example—as of March, Samsung Electronics alone representing nearly 34% of the entire Korean composite stock price index market cap, making it so difficult to have stable and diversified investments. And it sort of undermines the confidence of public investors in the system, right? It’s conglomerates, like Samsung, LG Hyundai, all these big companies. So, in contrast, real estate is visible.
It does not disappear, right? And it’s valued, doesn’t go to zero, as stocks can. So, the formula for a winning investment in real estate, you know, seems clear enough, especially in a country where, you know, half of the population lives in one metropolitan area. So, when the Korean economy began growing explosively in the 1980s, a lot of people suddenly became very rich due to the housing price skyrocketing in such a short period of time. So, in 1977, for example, a 1000-sq ft condo in Apgujeong in Gangnam—you know, I’m sure everybody’s heard this song, “Gangnam Style,” it’s sort of like Beverly Hills in Korea. So, you know, a 1000-sq ft condo in Apgujeong City in Gangnam was approximately, let’s say, like $10,000 or $14,000, and today, that same condo is worth over $2 million.
So, that is approximately over 330% in annualized returns over, like, 40+ years. So, there are a lot of people who happened to own real estate and became so rich, or a lot of younger people, younger generations, who inherited the real estate from their parents that happened to, you know… whose value happened to increase, like, exponentially, and they became very rich. So, when the EB-5 market was more lively and active, with the rate of, you know, with the minimum investment of $500,000, we had a lot of Korean investors, especially younger investors who inherited real estate property from their parents, which, you know, with a value that literally, I mean… a little tiny condo worth over $2 million, $2, $3, $4 million, so $500,000 for their EB-5 investment wasn’t, like, too big of a deal.
You see what I’m saying? And proving the source of the real estate is relatively easy compared to other Asian countries, like I mentioned, because if, for example, a son or daughter inherited this real estate property from their parents—then we have to prove the source of their parents’ money to purchase this property. Even though we cannot go all the way back and always be able to prove their income using the income certificates, at least we can retrieve their records from back in the 1980s, and then anything that we need from before back in the 1980s, we can use declarations, third-party declarations, to prove the source of their funds that they earned before 1980s, like the 1970s or 1960s, if necessary. Then, after that, it’s not an issue because we have tax certificates, and, you know, it is relatively easy to find the banking records, the bank transactions, the bank statements to show them at least the latest transactions to show the path of funds from the parents’ account to their children’s accounts.
And also, all of this inheritance-related documentation—so, for those who happen to own this real estate, especially in the city of Gangnam or, you know, the area where the housing price literally skyrocketed in such a short period of time, it used to be relatively easy to prove the source of funds, whereas, like I mentioned, you know—and it says the equities on commercial, fixed deposits. So, this is another interesting concept only—not only, but specifically available in South Korea. So, in South Korea, most of the banks offer various types of fixed deposit savings. It’s called a fixed installment time deposit account. That’s a literal translation. So, what it does is that investor, I mean, their customers open up this fixed deposit account, and they put in their deposits… you know, they sign a contract for maybe one year or two years, and with two years, they cannot withdraw any money, but they get the higher interest rate.
And this type of, you know, fixed deposit accounts are so popular in South Korea. So, a lot of our clients also have the fixed deposit, which also makes our job very easy because as long as we have an income certificate showing that they earned enough income to be able to deposit that fixed amount into their fixed deposit account, then all we need to do is to pull all the, you know, income certificates, the latest bank transactional records to show the path of funds and then show a consistent amount of withdrawals that transferred to the fixed deposit account. So, a lot of our clients, Korean clients, also use a fixed deposit account as part of their source of funds in addition to their property. And also, as part of the property, we not only have to prove the source but also the registration.
So, first of all, sales agreements—oftentimes, people, if it’s too [long] ago, an old transaction, then a lot of people don’t keep the sales agreement or, you know, they lost it already. If that’s the case, then we try to get a declaration, at least by the agent, the realtor who assisted them with the sale, confirming the sales transaction, but always, it is best if they can try to look for [the sales agreement] and find it. But if not, then a declaration. And then a bank statement showing that withdrawals and deposits for the amount, the sales amount, and also the certified copy of registry is the title, the deed. So, there are two types, building or land, so it can be both. So, also, there’s a local type of assessment certificate which shows the value of the property. So, those are the documents that you have to included as part of the source of funds for real estate property. All right, I’m ready for the next slide.
So, would you say that real estate is the most common source? Would you say this is the most common source of funds that you use, or about what percent of your clients are using real estate as their source of funds from South Korea?
So, I would probably say more than 60 to 70%, but I wouldn’t say real estate is the only most common source of funds because—or, I will say this: real estate is always part of their source of funds. Like, 80%, more than 70 or 80% of our clients use real estate as part of their source of funds, if not all, but they usually tend to mix with other sources of funds. They use real estate because it’s so easy for them to utilize it. You know what I’m saying? If they don’t want to sell it, then they usually get a loan based on it, using the real estate as collateral. But I’m going to explain about why people are hesitant to use loans nowadays when we go over the next slide, the slide about the loans. Now, gifts or inheritance—
So, that makes a lot of sense. For anybody that can invest $500,000, or now $900,000, chances are, them or their family does own real estate and with how clean it is in South Korea to get the records, it makes a lot of sense to use that as a portion of the source of funds.
So, for the gifts and inheritance, I specifically prepared a separate slide for gifts and inheritance to go over specific issues pertaining to Korean investors, because Korea, unfortunately… like, right now, so far, I’ve only talked about this positive side of Korean source of funds, right? But there’s a negative against Korea—it’s one of the very few countries that has gift tax even if the gift is made between family members, meaning parents and parents and children. So, their gift taxes—not only do they have gift tax that they have to pay, but it’s ridiculously high, which I’m going to go over. I prepared a chart to show you how much tax that they have to pay. So, gift tax is something that… because there’s a high amount of gift tax, and depending on the amount of the gift, the percentage of tax is increased, when it was $500,000, people tried to minimize the amount of gifts so that they didn’t have to pay gift tax. So that’s why they tend to mix, you know, different sources of funds here and there to make it up to $500,000. However, with $900,000, I don’t think they can do that anymore. And eventually, you know, some Korean investor clients would have to pay the gift. I think I hear the echo.
Okay, now it’s better. So, I’m going to go over that chart later, but that’s something that I wanted to share with potential Korean investors. But when you go… when you think of using gifts as part of your source of funds, make sure to always think about proving the source [of funds] of the donor. Just because you received a gift from a third party, like a parent or a third party who happens to know you and wants to gift it to you—it doesn’t matter. It doesn’t mean that you don’t have to prove the source [of funds] of that person. You also have to go all the way up and prove the source of that donor money. And then, as well, for South Koreans, they also have to have the proof of the gift tax that was paid.
So, usually, we prepare a gift declaration for the donor memorializing, you know, the fact that they confirmed that they agreed to gift this amount to this investor and there’s no obligation to pay it back. And plus, we also always include a statement saying that all the required gift tax has been paid, and we even include the receipt of the gift tax paid and issued by the tax authority in South Korea. Okay. Next slide is loans. Loans are also a very interesting topic, especially because of Zhang versus USCIS. So, for those who are not familiar with Zhang versus USCIS because you don’t really have to know if you’re not an EB-5 practitioner—for investors, you don’t really have to know in great detail—but, for those EB-5 practitioners, I’m just gonna briefly go over the recent development pertaining to Zhang versus USCIS.
So, in this case… so, the plaintiff Zhang, with one other investor, they filed a lawsuit in the U.S. District Court for the District of Columbia, arguing that once a loan proceeds, the loan is lawfully obtained, then it’s cash, cash is cash is cash. It is not indebtedness because proving the loan, lawfully proving that the loan itself is lawful, has already been done, completed. And once that cash is in your hands, then that’s cash, it is no longer indebtedness. However, USCIS argued that no, it is indebtedness and therefore has to be collateralized by an asset that is 100% owned by you, the investor. So, when this issue was very ambiguous and unclear, even recently, we used to always require our investors to make sure to remember to always, you know, get a secured loan that is collateralized on [their] property asset that is 100% owned by [them].
So, we prepared not only the source-of-funds documentation to prove that the loan is a legitimate loan issued by an institutional lender or a third-party lender—we also had to prove the source of the collateral or the source of the asset that is used as collateral. So, we had to prepare to set up documentation, even though the law clearly says, you know, as long as it is a loan, then cash is cash. So, that was a whole issue. And the U.S. District Court agreed with the plaintiff, and they confirmed that once the loan is lawfully obtained, then it is cash, and cash is cash, literally. And therefore, USCIS shouldn’t require investors to prove the source of the funds to acquire the assets of the collateral. So, basically, the court ruled that it doesn’t have to be a secured loan. It can be an unsecured loan, as long as the loan itself is lawfully obtained.
That case actually was appealed, of course, right? And recently, the US Court of Appeals for the district of Columbia circuit again affirmed that loan proceeds qualify as cash. So, this whole lawsuit was led by attorney Eric Carson, an attorney that I highly respect and admire. Literally a lot of people were so cheerful and so happy to hear this news, but that doesn’t mean that just because we just… even though at the appeal, the court reaffirmed that loan proceeds qualify as cash, we can’t always rely on this because we still have to let USCIS have some time internally to train their staff and adjudicating officers to make sure that they are aware of this change. And they don’t blindly just adjudicate our cases based on the old, you know, adjudication style. So, just err on the side of caution and, like, just to be conservative and safe, even if the appeals court affirmed that loan proceeds qualify as cash, if you’re an investor, then I think, just until USCIS finally digests and registers it, understands this concept, and applies this to an ordinary, like, real, you know, day-to-day practice, not blindly issuing, like, NOIDs, notices of intent to deny, RFEs, or even denials without knowing about this, because that can happen, obviously.
So, I think it’s better as a practitioner. I think it’s better to still prepare your clients, still recommend your clients obtain secured loans, if possible. However, if it’s not absolutely possible, if there’s no other way to obtain other sources of funds and if your clients absolutely have to rely on this unsecured loan, then you should go for it. You should get… at least you should get an acknowledgement of risk. So, you should make sure that you inform the risk so that your client can make an informed decision—however, you should go for it. So, for example, in South Korea, what happened was, recently, the Korean government has tightened mortgage rules. The South Korean government tightened the mortgage rules by revising the debt to income to have a more accurate representation of actual income when licensing, when issuing loans. I’m going to go over what Joense means.
It’s called “key money system” and is only available in South Korea, but I’m going to go over that in detail later on a later slide. But because of that Joense system, it was so easy even for the investors to buy apartments even using the tenants’ money instead of their own money and then make investments, make profits out of it. So when I talk about the Joense system, you’ll get a better idea what is, what it’s about, if you’re not Korean, but because of that issue, the South Korean government began to tighten the mortgage rules. So it’s becoming more and more difficult to get a mortgage, both residential and commercial. So, what happened was, it’s been extremely difficult to get residential and commercial loans.
So, at first, it was residential loans hit by this change and then, commercial loans. So, people had to rely on unsecured loans based on credit. So, if you have great credit, or if you have a lot of properties, then a lot of banks want to issue an unsecured loan because they already know that you have a lot of properties, but it’s just that they can’t issue a mortgage because of this change in their system. So, because of this very unique system and change in South Korea, back last year before the law changed back in November 2019, when people were all going crazy trying to file their case before November 2019, before the [EB-5 investment] amount increase, a lot of people without any choice had to rely on unsecured loans. So, we actually, even before the appellate ruling came out—it recently came out in 2020—but back in 2019, we had to rely on the first ruling by the district court on Zhang versus USCIS for those South Korean investors who are going through that change with the South Korean government tightening the mortgage rules back in 2019, at the same time dealing with the amount increase in November.
So, we had to file the cases based on unsecured loans. I literally include the Zhang versus USCIS argument all over my cover letter, all over, like, even the intro, body. Like, I explain that this is legitimate and cash is cash, you know—it is from the institutional banks and legitimate bank money. So, there’s no question about the legitimacy of the bank money. And then I even print out the website of the legitimate Korean bank. Like, it’s a well-known Korean bank. I also print out the Wikipedia page of the Korean bank to show that it is lawful money. If this bank issues a loan, then it’s lawful money—therefore, it should be considered as a lawful source of funds because cash is cash. And luckily, we’ve received approval already on some of the cases—not all, but some of the cases we already have received approvals.
It’s one of the very… our case is very unique because we were forced to use unsecured loans. So, we had to test the market—I mean, test and see whether it works or not, without any choice. But what I can share with the practitioners is that it has worked. Not sure if it’ll work in the future because if you get unlucky and if you get a very unknowledge officer who’s not aware of this change, Zhang versus USCIS, and they blindly look at the old template of guidance guidelines, then you can get a nasty RFE or NOID. But what I can tell you is that you can fight the issues. I’m very confident that, you know, with the response memorializing Zhang versus USCIS, you’ll be able to overcome the issue without any problem. So, okay. So, now I’m ready to talk about very special source-of-funds topics only for South Korean nationals.
So, I already briefly mentioned about, like, the Jeonse system. So, this is a rental system, a rental system that is very unique, unique in South Korea only. So, this is how it works. For the duration of the lease—typically for two years, or it can be three years—the tenant put down a massive deposit with the landlord, usually around 70% of the value of the home. The tenant makes no other payment to the landlord for the duration of the lease, who then [the landlord] returns the entire deposit, called key money, or Jeonse, at the end of the lease, sort of like a lending system. So, in essence, the landlord is borrowing money from the tenant at no interest. So, the tenant’s sort of like a bank, and there’s no interest. So, instead of collecting a monthly rent, the landlord then makes money by investing the borrowed deposit for the duration of the lease.
So, this unusual system is a byproduct of South Korea’s period of rapid growth. And even to this day, this is something that the government came up with because, you know, after the Korean war, everybody was poor. Like, there was no way that the tenant was able to pay their monthly rent, like, nobody has money. So, this is some kind of very creative system, the byproduct that the Korean government came up with in order to… while they figured out how to stabilize their economy after the Korean war. So, to this day, the Jeonse system is the dominant form of real estate, and because of this issue, people sort of began to abuse this system, Joense, to get benefits, to make profits, by, you know, by buying the property using, like, you know, a small portion of their money, and then they get tenants to pay the Joense, the lump sum amount.
And they combine the Jeonse with their, like, you know, a little portion of their deposit, and they purchase a property, and then they sell it at a higher price and make that profit. So, it is called a gap investment. That’s exactly the issue that the South Korean government tried to prevent, and people started to do that, started doing that by purchasing multiple different properties like that using the Joense money, and then almost like a flipping the house but using Joense. So, you’re not even using your [own] money, but you’re making profits, but if you’re literally doing that for, like, you know, a lot of properties, then it’s not really fair for others who are not able to… who don’t even have the money to get into a system like Joense, right? So, that’s what happened. So, number one, aside from that issue, a lot of Korean investors use Joense as part of their EB-5 money.
So, what they do is, the landlord… let’s say the landlord is an EB-5 investor—or their parent is, and then they gift the money that they received from the tenant to their children. So, it has worked in the past without an issue for several years. This has been so popular in South Korea, no issues. However, USCIS recently began to raise the issues by carefully reading the contract and saying, “Oh, so it belongs to the tenant, not you? Then it’s not your money.” It’s almost like… I don’t think this Jeonse… I don’t think this [Jeonse system] is any different than a loan issued by the bank. But does that mean that when you borrow money from the bank, that is now your money? You know, once that money that you borrowed from the bank, the lawful source of the money, whether an institutional bank or a third-party lender, once the lawful source of the lender is carefully, you know, proven that cash is cash—in my opinion, therefore you can’t make a claim that the key money is not a legitimate source money and it is someone else’s money.
So, I’m very confident that this issue will be, you know… we will be able to overcome this issue if this becomes an issue. And I’m sure, like, soon there will be litigation on this issue. And if we get an opportunity and if our client lets us handle and litigate this matter by paying for our reasonable legal fees, then we’ll be more than happy to… I’ll be very interested in litigating this matter in federal court, but in my opinion, cash is cash, and this should just work the same as a loan, as long as the source of the money can be proven and it is legitimate. Number two, unsecured loan by no choice. This is something that I explained. So, because of the recent change, the Korean government changing the rules on mortgage loans, people had to rely on unsecured loans, but it has worked on some of our cases that have already been approved. Other cases are still pending, but I, really, I’m very confident that these unsecured loans will be approved, because with this appellate court decision, I feel even more confident that an unsecured loan is not an issue anymore.
Number three, a lot of Korean investors, especially professionals like doctors, surgeons do have a lot… many different life insurance products, a portfolio, as part of their investments. And, you know, it becomes a very common source of EB-5 funds because it’s a very clean transaction. They show all the premiums paid over the years. So, they can get loans against the premium paid to date as collateral. So, a life insurance loan is another very popular source of funds for South Koreans. Then, lastly, there’s a mini source-of-funds requirement only for South Koreans. So, for South Koreans, they can transfer funds out of Korea only up to $100,000 per year. If you want to transfer more than $100,000 per year, then you have to prepare, like, a mini source-of-funds report and obtain an overseas migration source-of-fund, confirmation from the local tax office in Korea.
So, it’s not like… it doesn’t have to be almost like an EB-5 source-of-funds report, but it’s sort of, like… it is much simpler, but you still do have to include some very important documentation to prove that all the sources of your funds were legitimately obtained, that you paid all the required taxes… as long as you can prove that, it is fairly easy to obtain the confirmation from the local tax office. So, once you get that confirmation from local tax office in Korea, then you can transfer out money regardless of… there’s no limit. I mean, as long as you can prove all the source of those funds, like $900,000 or $1.8 million, then there shouldn’t be an issue. Okay, I’m ready for the next slide.
Okay, great, great, Evelyn.
Okay. In the interest of time, I’m going to just quickly go over… I kind of want to really make sure that they have enough time to go over their slides. So, this is the gift tax that I mentioned. This is a chart—as you can see, the $900,000 is approximately Korean won 1 billion. And as you can see, they have to pay 30% tax. If it’s more than 1 billion, depending on the currency [exchange rate]—it can be more than 1 billion to meet $900,000—then it can be 40%. So, it’s a somewhat unreasonable amount of gift tax that parents have to pay, even when they want to give money to their own children. So, that’s why a lot of Korean investors can’t just rely on gifts as part of… or inheritance as part of source-of-funds appraisal reports.
The last point is the appraisal report required for mortgage loans or sales of property. So, in China, for Chinese investors, what we do is we include a very, like, a full booklet, a full appraisal report showing the amount of the value of the current fair market valuation of the property, especially when they’re using a loan or sale of property as part of their source of funds. But unlike China, it is really not common or easy to request a full copy [in South Korea]. Most of the banks would say no, but usually what we do is we include an agreement for loan transactions and an agreement establishing the right to collateral as security and a confirmation of financial transaction. It shows the amount of appraised value that was issued by the bank. And also, we include the tax documentation to show, you know, those… like, the property tax, Korea also has property tax documentation, which shows the appraised value. So, with that document, I’ve never received an RFE requesting the full source of funds, the appraisal report booklet like we do in China. So, I just wanted to highlight that for those who have never filed EB-5 for Koreans. Okay. I’m ready for the next slide.
Great. Thank you, Evelyn. So, now Mike and I, we’re going to quickly talk about a real-life example that’s a little bit more on the complicated side, just to give people an idea of how this would mechanically work in the case of a loan scenario, which we are seeing a little bit more often now in the last year or so. So, we’re going to take this step by step, so, high level—this is a situation where we’ve got a South Korean national who’s going to be an EB-5 investor, and that investor has property, a multi-family apartment building in Seoul, and that investor doesn’t want to sell that building. And for whatever reason, they decided not to get a locally sourced loan or a mortgage in Korea for that building—maybe the interest rates are too high or, you know, whatever the case is—but they do have a friend who’s a U.S. citizen in the US—a U.S. national.
And that friend has a successful consulting business that’s making money and paying tax and, over the last five years, has generated over $300,000 a year in after-tax income each year over the last five years. So, in the last five years, they’ve made over $1.5 million after tax. And so, that friend has agreed to provide a $900,000 mortgage against the apartment building that this investor owns over in Korea. And so, starting with number one here, we’re going to kind of talk about some of the documents and things that would be required in this type of a scenario. So, first, you know, the investor is going to have to provide all their personal credentials and documents, their passport, birth certificate, driver’s license, local ID, all of that information for the investor and his or her immediate family members—husband, wife, and kids under 21.
Second, as we mentioned earlier, you’re going to have to prove that that investment actually is real, the building itself [is real], and that it’s worth at least, or more than the loan amount—in this case, $900,000. And you do that most commonly with a third-party appraisal done in the last year, probably. And then, third, include documents and information on how the investor became the owner of that building. Or it could be a case where, you know, they only own a percentage and then, you know, the same types of rules would apply for that percentage of ownership. So, did they inherit the building? Did they buy it a long time ago and it’s since gone up substantially in value? How they obtain the title today, and is there any other debt on it? Then, shifting over to number four.
So, you know, a loan agreement showing that the money’s been loaned and that it’s not a gift and that the collateral or security for that loan is a mortgage, right, or a lien, you know, whatever the appropriate documents are locally to reflect that if the investor doesn’t pay the mortgage payments as described in the loan agreement, then there’s some clear path for the lender—in this case, the friend—to foreclose on the collateral. And that’s going to vary substantially by jurisdiction and by country, what the rules of law are going to be to really have that security. And so, you’re typically going to want to have a letter from local counsel explaining, you know, how that’s possible. And it’s going to need to be defined in the loan agreement itself. Then, in terms of the capital that’s being loaned, the friend who’s loaning the money has got to prove that his business is legitimate.
It’s a U.S. business in this case. So, the documents are going to be much clearer. So, incorporation documents, FEIN number, operating agreement… where’s the business located? Is it registered to do business there? What business is it in? All the tax returns that that business has filed… and you’re going to need to show that the money that’s being loaned was actually income, or after-tax income, received by that business from various third-party vendors or various third-party clients, right? So, you’re going to want to show invoices for services performed and compliance with all state and federal tax rules and the bank statements showing that services were provided at arm’s length, what services were provided, what funds were received, so that you can say that that really is earned income for services provided. Then, the same type of information for that owner of the business—passport, birth certificate, [driver’s] license, all of that.
You’re also gonna need to provide that for the owner of the business as well, to show that that’s a legitimate person and who they are, where they are, that’s operating that company. So, this is a little bit more complicated of a structure, but it does kind of touch on all the different items that we discussed today earlier in the webinar. And, again, this is going to vary by local jurisdiction, but in general, if you’re getting funds from a loan or a gift, you’re going to have to show not only that you got those funds but where the person who’s giving them or loaning them to you got them, particularly if you’re getting a loan from a private business. If you were getting a loan from, let’s say, Wells Fargo Bank, then you’re not going to need to show that Wells Fargo got that $900,000 and show all the transactions of where Wells Fargo got that money, right? There’s going to be a much different standard for a publicly traded multinational bank versus a smaller private operating company. So, that’s kind of important, too, to note there. Evelyn, do you have any other comments, or Mike?
In every case? I would say that every case is very different, and that’s why it’s so important to work with a qualified attorney that’s worked with people in your situation before, whether it’s from your country or from a specific source within the US. Working with an experienced attorney always makes this process a lot easier to detangle this complex structure.
That one thing I want to chime in is, Sam, Mike, is that this chart shows the loan collateral. So, it is still… even though I went over Zhang versus USCIS and how an unsecured loan works, even though I said that. And then, Zhang versus USCIS, with the appellate court ruling, I feel more confident, but I am more on the conservative side. And I don’t want to… I also don’t think USCIS officers would right away apply that and agree, or be able to digest it and train all of their adjudicating officers, especially if it’s for new ones [petitions]. So, while they figure that out, it might take time. I went on the side of caution and still use secured loans, if possible. And I would only recommend to use an unsecured loan if it’s absolutely, you know, necessary. So, that’s one thing, one point I wanted to make. So that’s why it shows loan collateral. So, before, it was a standard practice to always require collateral and make sure that all the assets are 100% owned by the investor.
Yep. Yep. That makes sense. And we definitely agree with that as well. So, now, to help people kind of illustrate exactly how the source of funds comes together, as Mike mentioned earlier, when investors file their I-526 petitions, they’re submitting a package that includes a lot of documents explaining the project and how the EB-5 investment itself meets EB-5 program rules and regulations under USCIS. And so, usually there’s a cover letter, which explains all of the project details and also explains the source of funds information as well. And so, to help kind of illustrate how that cover letter document typically comes together, we’ve included this free template, which kind of explains a fictional scenario to give people an idea of what types of documents and how many exhibits and what things are going to be required, potentially, to be included.
And again, this is going to vary substantially by investor and their financial and personal situation. If they own real estate, if they’re employed, if they’re self-employed, if they’re employed by a large company—this is going to vary dramatically. But to give you an idea, we’ve put together this outline, and that’s available on our website—the link is there. And here’s a more detailed explanation about just some of the types of exhibits that you would tend to find for a filing. Basically, the most important thing to realize is there’s going to be a lot of exhibits, and a lot of them are going to be bank statements and records and official documents, tax records. And so, it’s not going to be something you can just pull together in a few days—you’re going to need to meet with immigration counsel and determine exactly what documents are going to be recommended, which ones of those recommended documents you’ll actually be able to get, and then start the process for obtaining them, organizing them, getting them translated if necessary, and then working with immigration counsel to make sure that you’re telling a compelling, logical, and very easy-to-understand and follow story to the USCIS adjudicator, who’s going to review your file and, ideally, grant approval because there’s nothing that’s incomplete or any potential questions that could have come up or have been addressed within the documents and letter that were provided.
Great. Thanks. So, we’re now gonna shift over and address some of the questions that have been asked during the webinar. So, the first question that we got was about the mini source of funds that Evelyn described earlier. So, the question was, who works to prepare that mini source of funds? Is that done by the client or the immigration attorney? How does that work?
Usually it is done by the migration agent, and usually most of the experienced EB-5 migration agents in Korea are able to handle the entire process. So, like, literally, I don’t even have to worry about getting the mini source of funds, but that also helps us because, you know, that is part of the process for my work too. So, the more experienced the migration agents are, the better. However, when we deal with the individual one-off investors, like my friends or my family, referred clients, or somebody who don’t have migration agents and directly come to me through a referral or introduction, then I would have to work on that with those individual investors. And the client actually has to either designate somebody, in case he or she is, like, a busy person, like the executive of a company, who happens to have an assistant.
Then we usually tend to work with those assistants. If not, then the clients will have to prepare those documents under our guidance and supervision. So, we tell them where to go and what kind of documents to obtain. Because we do this so many times, we do already have guidance and a template, sort of like an information package as to what they have to prepare. So, unfortunately, if it’s a one-off client, then the client has to go through the process and prepare the documents, but it’s not too difficult. Like, it’s fairly easy because it is a mini source of funds, not a regular, like EB-5 source of funds.
Great. Thank you. The next question we got was, “What is the current estimated processing time for an investor filing their I-526 from Korea to get approved?”
So, with the expedited approved projects, we tend to get an approval faster than others. The fastest approval that we received was less than three months—however, for the regular projects, you know, the typical is 2.5, 3 years. And if it’s more than three years, then people consider finding a writ of mandamus. It’s same as other… like, we don’t have unusually delayed processing for Korean investors. And it also depends on the projects, too—for some projects, their processing time is a little bit faster than others.
One another question that we got kind of related to that is, “How does the mandamus filing work? What is that? And when is that appropriate for an investor to pursue?”
Okay, so a writ of mandamus is something that an investor can consider filing in case the I-526, in the initial stages, is being delayed. And even though… so, for example, if you go to USCIS’s website, there is a processing time that they put on their website, and their processing time is just ridiculous. And it will show up to six years, like I think it recently, right now, it’s currently showing like up to six… three years up to six years or something like that, which is ridiculous. And there’s no way you can wait until six years until your initial I-526 is approved, right? So, usually we recommend them to consider [filing a writ of mandamus] if they really… so, before we even consider filing a writ of mandamus, we start submitting an inquiry as to, what’s happening and, like, ask for the update as to what’s happening to their I-526. We usually give about two, three, four chances, and then, after about three years—some people want to file an action in court after 2.5 years, but we usually want to wait at least for three years—so, a writ of mandamus is like a solution for pending I-526s.
So, the federal district court can provide some, like, effective options to solve the issue of long pending applications. So, this petition is brought under the administrative procedure act, or APA, or the Mandamus Act to compel an agency, like the government, a U.S. government agency like USCIS, to perform its duty to act when some kind of adjudication is unreasonably delayed or impermissibly withheld. So, you know, under APA, the court can generally determine whether they will compel agency action or not. So, when, you know, filing for writ of mandamus, courts look to whether there’s a statute or regulation that mandates a specific timeframe for adjudication, whether the plaintiff has a right to the requested relief, and if the plaintiff has any other adequate remedies. So, we draft a complaint asking for the government, USCIS, to look at this statute, the processing time.
And also we explain, you know, why this unreasonable delay negatively impacts our investor. And we file literally a complaint in federal court to prompt the government agency to act because they’re obligated to perform [their] duty to act. So, usually, when we file this case in federal court, the government has 60 days to respond. And in many cases, we get the movement within those 60 days by working with the assistant U.S. attorney or AUSA, who usually represents [USCIS]. So, AUSA is the attorney who represents the government USCIS, and we have back-and-forth communications and correspondence with AUSA, and AUSA relays the message to USCIS, and usually USCIS issues another request for evidence. Sometimes they issue a notice of intent to deny if there’s any issues that are, sort of, deniable, but usually they either issue an RFE or approve the case, if the case is clean and there’s nothing, no issue to be raised.
So what I always recommend is, I mean, finding it early and knowing what’s going to happen. It’s not going to change the outcome—just because you filed a writ of mandamus filing doesn’t mean that you’re going to get a nasty RFE or NOID or your case can potentially be denied because at the end of the day, you’re going to get the same issue anyway, right, even if you don’t file a writ of mandamus. But in case your client needs some time to prepare, you know, additional documentation for a potential issue that they think and they can anticipate early on, then I highly recommend to carefully review the source of funds with the client and see when would be the right time to file a writ of mandamus. Just because it has been pending and delayed doesn’t mean that you want to file a writ of mandamus without analyzing the source of funds and see whether there’s any issues that can be raised in an RFE. You definitely want to be ready for it before you filed for the action and go to court.
Great. Great. Thank you, Evelyn. So that will be the last question that we’ll be able to cover. So, any other questions that come up related to this material, please reach out to us. The contact information, email, phone number details are on there, on this slide. And again, if you want to review a recording of the webinar, it’s going to be on our YouTube channel, just Google EB5AN on YouTube. And if you’d like a copy of the slides that were presented today, just email us email@example.com, and we’re happy to provide those. For any immigration-related questions, please reach out to Evelyn, and thank you again for taking time to join us today. And thank you, Evelyn, for helping us and sharing your insight into the Korean market.
Thank you for inviting me. My pleasure. Bye, everyone. Thank you, everyone. Bye.