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Can my EB-5 investment funds come from a gift?
The short answer is yes. In order to qualify as an immigrant investor under the EB-5 program, one must sufficiently document the source and path of his or her investment funds. There are various ways to prove the “lawful source” of the investor’s investment funds, including through receipt of gift proceeds.
USCIS Guidelines
USCIS has stated that if an investor “submits relevant, probative, and credible evidence that leads an officer to believe that the claim is ‘probably true’ or ‘more likely than not,’ then the [EB-5 investor] has satisfied the standard of proof.”
If gift funds are the source of an EB-5 investment, there are at least two parts of the EB-5 application that USCIS might scrutinize:
First, USCIS will want to verify that the funds represent a bona fide and irrevocable gift, and that there are no repayment terms between the donor and the recipient of the gift. A gift from an investor’s friend or business associate will draw more scrutiny than a gift from an immediate member of the investor’s family. The investor will want to include a copy of a written gift agreement signed by both the donor and the investor/recipient. The gift agreement should make clear that the gift is “irrevocable” and that “no repayment is required.” If the Donor is not an English speaker, the gift agreement should be in their native language, with English translation provided in the investor’s EB-5 application.
Second, USCIS will inquire into the source of the donor’s funds. An EB-5 applicant will be required to gather and submit records proving that the donor’s gift funds were lawfully earned or acquired. USCIS will want a detailed account disclosing the source of the donor’s funds, and supported by documentary evidence. This is where records such as bank statements, tax returns, employment records, loan documents, investment records, property records and business accounting records may be needed.
An Attorney can help
Navigating these requirements necessitates finding an immigration attorney well versed in filing EB-5 applications. Their experience can help guide you through the process, and ensure that your application is approved without unnecessary delay.
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