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How can income earned on previous visas be used for EB-5 investment?

My wife and I are thinking of investing in direct EB-5. We have rental income from more than 40 rental properties, and also earned income from consulting and buying and selling properties while I was on H-4 and my wife was on H-1B. Our main concern is with the source of funds for the EB-5 investment. Can an EB-5 investment be made using income earned while on other U.S. visas? What kind of issues can come up with our case?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    The EB-5 personal investment funds can come from lawful sources and from immigration authorized activities in the United States. For instance, if you are personally involved in work, employment and executive or managerial duties overseeing the U.S. business activities under an E-2 or L-1 status then the funds derived from these authorized activities can be counted towards the EB-5 personal funds. However, under H-1B status you can only work for the U.S. employer, while under H-4 status you cannot work at all. Under the facts you present you are not just collecting rent, but you are working or managing the business activity which will be considered unauthorized employment and therefore the funds or rental income is from an unlawful status which cannot be used.

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    Robert Lee

    Immigration Attorney
    Answered on

    Yes that income can be used. The only issues are tax documentation and compliance. As long as everything was done by the book, yours should be an easy case.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    EB-5 investment funds must be lawfully obtained. There is no law, regulation, or policy that would exclude income earned by a foreign national in the United States in valid nonimmigrant status. Therefore, you may use funds lawfully earned in this country as part of your EB-5 investment. The documentary requirements and standard of proof remain the same for all sources of income.

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    John J Downey

    Immigration Attorney
    Answered on

    Your earned income may be used. As long as your status permitted you to be employed. I presume you filed non-resident tax forms. Then you should not have any major problems.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    Yes, if your wife can show that she was working for her H-1B employer[s] and used those earnings to make investments. You did not have authority to work in H-4 status and cannot use any income you may have earned illegally to make your investments.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, this can work, but you will need to go back and show the original source of the funds invested here.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The issue you will have is that you, as a H-4, worked without work authorization, which will be one of the questions at the I-485 Adjustment of Status state. Your wife#39s income on H-1B could be used for EB-5 investment successfully. If her income was used to buy those rental properties that could be tracked, then the rental income also could be used. The key is showing that her H-1B income or some other funds that could be tracked legally were used to purchase properties and using only those rental properties that legal Source of Funds could be tracked from the purchase date of the properties.

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    Ying Lu

    Immigration Attorney
    Answered on

    Yes, legally obtained funds while you are on other visas can be used in EB-5. In your case, I feel that USCIS will be very interested in knowing how you initially got sufficient funds to buy those 40 rental properties. So you need to prove how you legally acquired the rental properties. Please consult with an experienced EB-5 attorney on the source of funds issue.

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    Ian E Scott

    Immigration Attorney
    Answered on

    You can include income to prove source of funds from any legitimate business source. The problem here though is that from what you have written, you may have created a bar to obtaining a green card by working without authorization. You should speak to an immigration lawyer right away.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    I do not believe that those sources would be a problem, as long as it is legal for you to own such property in the first place. Proper documentation will be necessary.

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    Stephen Berman

    Immigration Attorney
    Answered on

    As long as the income earned was lawful, and not in violation of the immigration and nationality act, it can be used.

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