I am a potential EB-5 applicant. I hold 10 patents and want to set up a business with the capital obtained by selling intangible assets, including my patents and trademarks. Will this be considered eligible by USCIS as EB-5 sources of funds? What documents do I need to provide?
Your EB-5 investment into a U.S. business is based upon authenticating your lawful source of personal investment funds, which may be derived from the sale or licensing of your patents.
You need actual capital. If you can sell the patents and use the proceeds or borrow from a third party against the value of the assets, then it may be OK.
That should be fine, as you will have the cash from the sales and they can go to your account and then into the project.
As long as you can trace your funds to lawful sources, you are fine to use those funds. So for funds obtained from licensing of your intellectual property, you can definitely show licensing agreement and payment information to document the legitimate source of your funds.
You need a fair-market evaluation and, yes, you can contribute intangible assets.
Yes, you can sell your intangible assets. You must have a written sales contract detailing information what is sold, to whom, the price and other terms of sales. Prior to the sales, make sure that due diligence is done prior to the sale, particularly for any issue relating to patents and trademarks. Also, make sure you collect the relevant sales taxes and make sure you pay the relevant tax collecting agencies those taxes. There are more other steps that you will need to take, so consult an attorney and other experts who can help on the issue of intellectual property before you complete the sale.
If you are able to sell these patents and trademarks, then this should constitute a lawful source of funds.
All of this must be resolved before Nov. 21 and there may not be time to avoid higher investment amounts. You will need to either sell or receive loan based on value of patents, so you will have the minimum dollar investment in your account before your petition is filed of at least $1 million or $500,000 if in a TEA.
This should be fine. Ideally, the patents and trademarks are in your name or in the name of a company you own. You would sell them and show the sales contract and money flowing into your account. If the company sells them, it would then have to make a distribution or payment to you. Once the money is in your account, you would use it to make the investment. It would be possible to use the patents and trademarks as your "capital" and give them to the EB-5 company, but it gets much more complicated. You would have to prove they are worth the minimum investment amount. Your best bet is to discuss your options with an experienced immigration attorney.
In theory you can you patents held in your own name and transfer them to the legal entity you will establish for the purposes of EB-5 investment. The intellectual property would have to be independently appraised in order to establish its objective value.
If you are contributing the patents to your business, you will need appraisals to prove the value of the intangibles. If you are selling them to a third party and receiving value (i.e., cash), that would establish the value and constitute legal source of funds. The minimum investment amounts are going up to $900,000 and $1.8 million on Nov. 21, so if you want to use the present amount of minimum investment ($500,000 and $1 million), you will have to hurry!
No. Since it is not possible to invest intangible assets, this will not work.
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