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How can I avoid source of funds issues on a real estate transaction in India?

In India, a common practice when selling real estate is to put some of the money in a bank transfer with legal documentation and another amount transferred to the seller via cash. This second part always lacks legal documentation. I am afraid it will hurt my chances of EB-5 approval. What can I do to ensure it does not?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Questions are typically being raised on the fund transfer procedures in India and host of other countries. However, a logical and detailed description of the process is a far more fair way to address the problem. If the procedure described is legally acceptable in India, the practice can and should be justified to the USCIS. Advisably, consult an EB-5 attorney to work on how to prove that the source of your funds is legal.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    An EB-5 applicant bears the burden of proof that EB-5 funds originate from a lawful source. When primary evidence is unavailable, you may supplement the case with secondary evidence, such as declarations or affidavits supported by secondary records to prove lawful source of funds. Engage an experienced EB-5 immigration attorney to help you competently prepare your case for submission to USCIS.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    An EB-5 petitioner bears the burden of proving that the invested capital was lawfully obtained. The standard of proof is by a preponderance of the evidence. This means that the evidence in the record must show that it is more likely than not, or probably true, that the invested funds were lawfully obtained. An experienced EB-5 practitioner can advise you on the specifics of your case and how best to meet this standard. Depending on the particular circumstances, secondary evidence such as affidavits or other evidence can be submitted if the primary evidence does not exist or is not available.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    You will have to prove that the cash was paid. Do you have a family member who can give you the difference as a gift?

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The best way is to explain everything in detail. The only option is to be forthright and explain exactly what happened. If this is the custom, it is possible USCIS may still approve your case. Even if there is no legal documentation, provide credible declarations from multiple parties who can attest to the truth of these events.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    No magic solution. You will need to show all funds being used for EB-5 investment were lawfully sourced.

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    Vaughan de Kirby

    Immigration Attorney
    Answered on

    The "black" and "white" money practice is a common challenge for applicants from India. All EB-5 investor funds must be fully documented as from a lawful source. I recommend you discuss this with an investment immigration attorney who has experience with this unique challenge. Ask the attorney if he or she has filed an EB-5 application for an Indian national whose investment funds came from India.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    All of the source of funds must be documented and tracked dollar for dollar from the original source to the ending in EB-5 investment. Even if you get the cash amount, you will have to deposit that sum into the bank in order to wire the investment. Thus, the sales agreement showing the full amount for the sale, with first installment in bank transfer and then the second installment deposited to total that sales agreement, should be enough documentation. You must, however, show how you obtained that real estate originally and what that was worth then and now at the time of the sale.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You need to have a trail for the funds.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    You may only use legal and traceable funds to present to USCIS. You would have to use what you can document.

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    Charles Foster

    Immigration Attorney
    Answered on

    Every EB-5 investor petitioner must prove a lawful source of funds. With respect to the practice of selling real estate in India with some of the funds being transferred to the seller via cash, presumably to lower the taxable amount, this in fact can present a problem in terms of documentation. Assuming that the value of the real estate as documented is insufficient, your options are limited. You can show the deposit of the cash, presumably in the bank, that coincides with the sale of the property and provide appropriate affidavits under penalty of perjury explaining the source of the additional cash and it may or may not be acceptable to the USCIS adjudicator of your EB-5 investor petition on Form I-526.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    You need to find some way to trace the transaction from original ownership, to sale, to receipt of the funds. Letters, bank statements, etc.

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