Questions and Answers > EB-5 Requirements

Do the funds for an EB-5 Visa have to be personally owned by the entrepreneur?

I currently live in the US in Post-Completion OPT F-1 status after I graduated from Columbia. I started a software company in New York which has commitments from a few foreign investors (same nationality as me) amounting to the minimum required for EB-5. Can I still apply for EB-5 or do I have to prove that the company investment is my personal money? After this investment is made I would own about 45% of the company, 25% to an American partner (also a sweat equity partner) and the rest for the people who provided the funds (the silent partners). We created 2 American jobs so far and I''m the only person who will be applying for the Visa.

Answers

• Taher Kameli

  Immigration Attorney

  Answered on December 4, 2012

  In short, yes, the investment funds must be personally owned by the person wishing to obtain an EB-5 visa. The investment may come in the form of cash, equipment, inventory, other tangible property, cash equivalents, and indebtedness owned by the applicant, provided that the applicant is personally and primarily liable and that the assets of the new commercial enterprise are not used to secure the indebtedness (in other words you cannot use your company as collateral to obtain additional financing for your company that would count towards the EB-5 investment minimums). You would not be able to use funds investment in the company by others to count towards your EB-5 investment minimums.

• Kate Kalmykov

  Immigration Attorney

  Answered on December 3, 2012

  EB-5 funds must be the investor''s. Contributions from other individuals may work if it is evidenced that they are given as a loan or a gift.

• Jinhee Wilde

  Immigration Attorney

  Answered on December 3, 2012

  EB-5 investor must show that he has had $200,000 in income for the past 3 years or has assets over $1 million. These funds must your personal funds, not corporate funds.

• David Hirson

  Immigration Attorney

  Answered on December 3, 2012

  You have to invest the capital in your own name and have it at risk. (Sweat equity is intangible and specifically proscribed by the regulations). Your percentage ownership is not a material factor. It is the cash amount of your equity investment that counts.

• Brandon Meyer

  Immigration Attorney

  Answered on December 3, 2012

  Cash is king. I tried doing something similar for the patent holder of a very well known children''s toy a decade ago that made him nine figures, arguing that although he didn''t put any cash into the enterprise, there was no company without his brain power and inventions. Didn''t work. USCIS will not accept sweat equity, retained earnings, brain power that led to company growth, etc.

• Robert P Gaffney

  Immigration Attorney

  Answered on November 30, 2012

  The EB-5 investor is required to invest all of the required capital ($1 million or $500,000 for an investment in a targeted employment area,? and the capital must be the personal funds of the investor. Unfortunately, you may not pool capital of other investors to reach the required capital amount.

• Boyd Campbell

  Immigration Attorney

  Answered on November 30, 2012

  Yes they do.

• Anthony Ravani

  Immigration Attorney

  Answered on November 30, 2012

  The money does not have to have been produced by the applicant. But ALL of it (100%) must be owned by the applicant. For example, a father can gift the money to his son. Thus, the money was not earned by the son, but it would be 100% owned by the son. When a foreign investor (or any investor) invests into your company, you do not own any of the money at all. It is the company that owns the money. You earn some sort of salary from that company and that is the only money that you own.

• Charles Raether

  Immigration Attorney

  Answered on November 30, 2012

  The arrangement you''re proposing is precisely what the new, proposed ''start-up'' visa category would cover. But it looks like that is a far way from realization at this point. The money invested must be your money. You can borrow the money, have it gifted to you, or derive it from some other possible sources, but it needs to be ''your'' money and placed at risk. From your description it appears that you would fall short of this requirement. However, there could be ways to structure around this depending on the exact circumstances of your case.

• Rana Jazayerli

  Immigration Attorney

  Answered on November 30, 2012

  Your investment amount does not need to be the only funds invested into a particular business, but you must be able to show that you personally have invested the minimum required amount for an EB-5 visa (i.e. either $500,000 or $1 million, depending on the location of the business). Therefore, if the total investment by everyone is only $500,000, and your portion is only $250,000, then you will not qualify for an EB-5 investment. However, if you investment $500,000 and the project is in a TEA, then you could qualify even if your ownership interest in the business is only 45%.