The EB-5 Immigrant Investor Program has several critical tests that the EB-5 immigrant investor must satisfy in order to obtain approval of their I-526 petition. The ‘lawful source of funds’ is one of the tests that individuals petitioning through either direct investment or the regional center pilot program must satisfy. USCIS’s definition of “capital” for EB-5 purposes excludes “assets acquired, directly or indirectly, by unlawful means (such as criminal activities)” 8 C.F.R. §204.6 (e). The ‘lawful source of funds’ is a written account of the source as well as the path (money trail) of the immigrant investor’s EB-5 funds to the United States. The petitioner must prove that their investment funds have been procured through lawful means.
Many foreign jurisdictions have different tax reporting requirements, capital export restrictions, and business practices; therefore, evidencing a lawful source of funds can be a challenge for those that are unfamiliar with these nuances. A lawful source of funds may be classified as, but not limited to, the proceeds from business ownership, sale of property, inheritance, gift or a loan. Although there is a basic list of appropriate documents that may be used as supporting evidence for the lawful source of funds, USCIS adjudicators may insist upon additional documentation beyond the regulatory requirements. The table below lists a few examples of appropriate supporting documentary evidence for the lawful source of funds.
| Source | Example of Supporting Documents |
|---|---|
| Sale of property | Title deed, Sales Agreement |
| Business ownership | Foreign business registration records, corporate, partnership, tax returns |
| Inheritance | Will |
| Gift | Deeds of gift, Letter of Instruction |
| Loan | Loan agreement |
| Income from business | Payslips |
| Income from investment | Stock certificates, receipt of dividends, account statements |
Simply following the EB-5 visa standards and regulations is not sufficient as every jurisdiction has different methods of documenting their residents’ business and financial activity. In cases where primary documents are lacking, there are other types of documents that may substitute as supporting documentation. It is critical to choose a law firm with experience in dealing with clients from multiple jurisdictions and knowledge of country-specific business documentation. With a global client base and multinational staff, Rahbaran & Associates is in a unique position to assist immigrant investor clients in preparing the necessary documentation to ensure a thorough and clear representation of the EB-5 immigrant investor’s funds in front of the United States Citizenship & Immigration Service.