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How can I use a gifted business to qualify for an EB-5 visa?

My uncle wants to gift his business to me in the United States. He has filed taxes. Will his gifting of the business to me with full management rights make me eligible for U.S. immigration through the EB-5 visa program?

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    This might work only if you sold the business and invested the sale proceeds in a new commercial enterprise. Otherwise a gifted business is not likely to be considered your investment; there are significant evidentiary issues with this scenario. Also, the new commercial enterprise would have to create at least 10 full-time positions for qualifying U.S. workers.

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    Charles Foster

    Immigration Attorney
    Answered on

    Having a business gifted to you count as a direct EB-5 investment can be difficult to impossible. While a gift from a relative such as an uncle is possible at this time, remembering that there may be significant statutory and regulatory changes in the near future, you still have the obligation of showing that based upon that gift, you have made an investment of at least $1 million unless the enterprise is located in a Targeted Economic Area (TEA) and then it would have to be $500,000. Again, those amounts could be increased at any time. You also have to show that as a result of such investment you have created 10 new jobs for U.S. workers. Given the fact that this is an existing business, you would have the additional burden of showing that as a result of the gift you have increased the number of employees or the capital by 140 percent if the business was organized before Nov. 29, 1990. This would be very difficult under the fact circumstances you have shared.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It may be possible if you meet the job creation requirement and this business qualifies as a new commercial enterprise or is otherwise a troubled business. You should consult an experienced EB-5 immigration attorney to review your options.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    It is very unlikely gifting a business will be a basis to get a green card. If you sell the business and make an investment with the proceeds, that would be a basis to apply for an immigration benefit. To qualify for an EB-5, you have to make a job creating investment.

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    Irina Rostova

    Immigration Attorney
    Answered on

    Probably not, unless you create 10 new jobs in that business. You would need to show that you have used the business assets gifted to you to establish a new entity and that new entity created 10 new jobs. Otherwise you will not be able to meet either the investment requirement or the job creation requirement.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    It can work. This assumes the business otherwise qualifies as a "new commercial enterprise." You may have to hire additional employees. Your uncle must be prepared to show how he earned the money for the business.

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