I earned more than $1 million over the last few years from lawful foreign sources and these funds are currently deposited in a personal bank account not in my home country. I am considering using only these funds for EB-5 investment purposes. However, as per my home country''s tax legislation, since and while these earnings are kept abroad, they are not subject to inland taxation and, therefore, were not included in my inland tax returns. Are these untaxed funds eligible for an EB-5 investment? Will I still need to include my inland tax returns with my I-526 petition?
You will be required to demonstrate your savings in a foreign bank account were earned lawfully. If these funds are not subject to taxation, then a memorandum from a local tax professional or tax attorney will be appropriate to document that there is no tax imposed on such funds. Please consult an experienced EB-5 attorney to discuss the specific facts of your case.
You should include your inland tax returns. The funds outside the country to be used for EB-5 need to show the lawful source of origin.
You may have to use other documentation to authenticate the source of funds.
Even though your home country may not impose tax on the income you mentioned in your question, does the country where you deposited your money impose tax on the income? In addition, you need to present evidence to prove that the source of the income is legitimate. For example, if it is a commission for your service, you will need to provide the service agreement between you and the third party to whom the service was provided. Each case is unique. I suggest you consult an experienced attorney regarding a complete document checklist.
If the funds were not subject to taxation under the laws of your home country, then you probably will not need to show your tax returns at all. You can use these funds for your EB-5 investment, but you will need to fully document how, when and where you lawfully obtained the capital you are investing in the U.S. new commercial enterprise.
In order to establish the lawful sources of funds, you may use funds deposited in a financial institution outside your home country, so long as there is a complete paper trail on how the funds was earned in legitimate business, what type of business transaction, and how it ended in the bank account. Current U.S. immigration law concerning EB-5 does not compel the submission of a personal income tax return from your home country.
USCIS will want to see tax returns filed for the last five years at least, where such tax returns are required by the local tax authorities. You may use the funds described for an EB-5 investment, provided you can prove that the funds were lawfully acquired and that the income was neither taxable nor required to be declared. A letter from an authoritative source such as the tax office, an accredited independent accountant or tax attorney, or such other official or professional will be required to confirm that tax treatment of the income you describe.
From a source of funds standpoint, payment of taxes serves as evidence as to the source of the capital. Payment of the taxes is not a required element of source of funds. You must establish only that they were obtained lawfully and were lawfully transferred to the United States.
Per USCIS''s latest guidance, the source of funds is the key to file the I-526 petition. Therefore, as long as you can prove the legal source of funds and provide relevant tax policies evidence to show that it is legal in your home country, it would be fine to use such funds.
You will need to source your funds. So if the only way to do it is through the tax returns, then you will have to provide them.
If this is legal in the jurisdiction or countries that you live in, then you would have to have that documented and explained. A legal memorandum from your foreign tax counsel with citations to the appropriate law would be needed. Your tax returns, despite their not showing the earnings abroad, would still be needed as is. Hence, you would appear to be eligible for the EB-5 visa.
