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What does a conditional green card mean for FIRPTA?

I am buying an apartment building in Seattle from a seller who came to the U.S. via the EB-5 program and who currently has a conditional green card. He claimed that his conditional green card makes him a “non-foreign” person for FIRPTA purposes, and that I do not have to withhold anything for FIRPTA. Is this correct? What happens if he fails to obtain a permanent green card? Could I be held liable retroactively for the FIRPTA taxation? 

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    The first step is to determine if that transferor is a foreign person or not. Here is the review: Is he or she a U.S. citizen or a resident alien by meeting one of the following? Lawful permanent resident (green card holder), substantial presence test? It appears he or she is a lawful permanent resident since a conditional green card holder is treated the same as a green card holder for all purposes. While some treaties may allow a person to be resident in more than one country, it is unlikely this person is not a resident.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You should consult with a tax expert since issues regarding tax liability are complex and often are very case-specific or person-specific. In general, a conditional lawful permanent resident has the same rights, privileges, duties and responsibilities as a permanent resident.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    This really highlights the importance of a team of professionals for a business or investment based immigration process. As an immigration attorney, I can't really speak to FIRPTA, but I definitely know a few specialists in that area who I would bring in to help!

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    A conditional resident is still a permanent resident and could do everything that U.S. citizens could do except vote. Thus, he is not a foreign person at this time of your transaction.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Conditional residents are permanent residents for most purposes.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, the seller is correct. He is currently a conditional permanent resident. Even assuming he later fails to obtain a permanent residency (permanent green card), the sale as a conditional permanent resident stands. Based on experience, the buyer could never be held retroactively liable.

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    Charles Foster

    Immigration Attorney
    Answered on

    The seller, who has conditional lawful permanent residency, would be deemed to be a non-foreign person for FIRPTA purposes. While it is highly unlikely that he will fail to obtain a permanent green card given the very high approval rate for I-829 petitions to remove conditions, you should not be held liable for the FIRPTA taxation if at the time of the transaction he was a non-foreign person.

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