I am a 35-year-old unmarried individual. I plan to apply for an EB-5 visa. I was told that only accredited investors can apply. I am in the U.S. currently on an H-1b visa. The required $500,000 is a gift from my father. My father has assets worth more than $1 million and that will be my inheritance in the future. Will I be considered an accredited EB-5 investor by USCIS?
USCIS does not require EB-5 investors to be an accredited investor for the EB-5 processing. However, due to SEC regulations, in order to invest in EB-5 regional center projects, the regional center requires the applicant to be an accredited investor in order to be exempt from the SEC requirement that a company that offers or sells its securities must register the securities with the SEC or find an exemption from the registration requirements. Qualification for "accredited investor" is as follows: has a net worth of more than $1 million, either alone or jointly with a spouse; or has an annual earned income of more than $200,000 individually, or more than $300,000 jointly with a spouse, in each of the preceding two years and expects that same amount of income, individually or jointly, for the current year.
Your source of information confuses the definition of an accredited investor under the U.S. securities laws with the requirements for an EB-5 visa. The EB-5 visa program does not require that an accredited investor be an applicant for a visa. It requires an investment of at least $500,000 in a qualifying investment opportunity. Meanwhile, some investment opportunities made available to EB-5 visa applicants may require that the investor have sufficient assets or income to have accredited investor status, and these opportunities can set their own standards that are higher than the EB-5 program requires. I hope this explanation gives you greater clarity.
If you are in the United States, then the accredited investor standard may apply. I would recommend speaking to a broker-dealer compliant project to find out if your father's accredited status can help you. Other options may be possible to allow you to meet the accredited investor standard.
If you're in the U.S. and you have no other income, assets, etc., the gift will need to be for the full $1 million. If you are outside the U.S., different rules apply, though. Check with the RC/issuer.
Gifted funds are acceptable legal sources of funds for an EB-5 visa, assuming the gift transaction is properly documented and your father can demonstrate a lawful source of gifted funds. Ensure that you hire an experienced EB-5 immigration attorney to competently prepare your I-526 petition. USCIS does not require that you be an accredited investor to qualify for an EB-5 visa. This is the U.S. securities law requirement. Under the U.S. securities laws, a company that offers or sells its securities must register the securities with the U.S. Securities and Exchange Commission or find an exemption from the registration requirements. Under the U.S. securities laws, companies are given a number of exemptions from the registration requirements. To that end, any approved regional center or other securities issuer, such as a lawful business entity offering a business interest for sale, may use an exemption to offer you, as an investor, an equity interest. One of the common exemptions from the registration requirement in the EB-5 regional center context is offering an equity interest for sale (generally, a limited partnership interest or unit/membership interest in a limited liability company) to an EB-5 investor who qualifies as an accredited investor under Securities Regulation D. In this context, to be an accredited investor, you must meet either one of the following requirements: have an individual net worth, or joint net worth with your spouse, of more than $1 million at the time you purchase an interest less the value of your primary residence (i.e., your main home); or have an annual individual income of more than $200,000 or annual joint income with your spouse of more than $300,000 in each of the preceding two years and a reasonable expectation of the same level of individual or joint income in the current year. Values are in U.S. dollars.
As an accredited investor you must have an income of $200,000 ($300,000 for a couple) or a personal net worth of $1 million. Your father's net worth would not be part of the calculation. If you are from a country such as India that has a CA, you may want to consider having the CA certify your assets or alternatively execute all documents on foreign soil. Your investment immigration attorney should be qualified to assist you with this question.
While in the U.S., in H-1B status, you are eligible to file an EB-5 petition on Form I-526. You may do so based upon a gift from your father of $500,000, although it would be necessary to show your father's source of funds.
There are two main ways to qualify as an accredited investor. First is any natural person whose individual net worth, or joint net worth with that person's spouse, exceeds $1 million. Or it is any natural person who had an individual income in excess of $200,000 in each of the two most recent years or joint income with that person's spouse in excess of $300,000 in each of those years and has a reasonable expectation of reaching the same income level in the current year. USCIS is not primarily concerned with whether you are an accredited investor. This is the regional center project's concern. Otherwise, the transaction may be voidable, which could become a USCIS concern. Basically, you parents must gift you $1 million, and then you qualify as an accredited investor.
Generally, the SEC defines an accredited investor as anyone who: earned income that exceeded $200,000 (or $300,000 together with a spouse) in each of the prior two years, and reasonably expects the same for the current year; or has a net worth of more than $1 million, either alone or together with a spouse (excluding the value of the person's primary residence). USCIS does not require you to be an "accredited investor." This is an SEC requirement. Therefore, the $500,000 investment through regional centers usually requires you to be able to show you are an accredited investor. Speak to an experienced EB-5 attorney and he or she can guide you through the process.
According to the strict definition of an accredited investor, you could qualify to be one in one of two ways: either your annual earned income is more than $ 200,000 individually or if married, more than $300,000 jointly with your spouse; or if you have a net worth of more than $ 1 million, excluding the value of your primary residence. In your case, if you do not qualify through the income test then you could qualify through the net worth test if your father who will be gifting you the $500,000 required investment amount is also willing to gift you $1 million. Unfortunately, future wealth you will obtain through inheritance cannot be used today to qualify.
That's more a question for a financial professional knowledgeable of the securities laws. EB-5 requires a team of professionals for investors to prepare both the financial and immigration aspects of the process.
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