Questions and Answers > EB-5 Investments

From whom can an EB-5 applicant receive investment funds?

My employer is willing to finance my EB-5 investment. Is it acceptable for them to provide a loan to partially cover the $500,000? Does it need to be a gift instead? Is a forgivable loan (based on my continued employment) permissible?

Answers

• Julia Roussinova

  Immigration Attorney

  Answered on September 20, 2016

  You cannot use a forgivable loan. Loan proceeds must be secured by your personal assets. They have to be appraised to obtain fair market value. Under pending legislation, there are stricter requirements for a loan to be from an accredited lending institution. A gift may qualify, but has to be properly documented and a donor (person making a gift) has to demonstrate the lawful source of the gifted funds and, if they are a U.S. person, file a federal gift tax return with the IRS (Form 709).

• Jimena G Cabrera

  Immigration Attorney

  Answered on September 12, 2016

  The loan has to be secured with your personal assets. With a gift, you will need to present extensive documentation regarding the donor's background.

• Charles Foster

  Immigration Attorney

  Answered on September 9, 2016

  An EB-5 applicant can borrow funds from any third party on the condition that adequate collateral is provided and you may receive a gift from third parties; as a practical matter that would be limited to close, immediate family members. Any loan must be secured by an equal amount of collateral.

• John J Downey

  Immigration Attorney

  Answered on September 9, 2016

  A loan is permissible as long as you are primarily responsible to repay it. I would structure it as a loan from the outset. If for some reason they wish to forgive it at the time of repayment, then it would appear to be alright. I would not put that clause in the initial documents, to avoid questions from USCIS.

• Jack C Sung

  Immigration Attorney

  Answered on September 9, 2016

  I believe that the employer can partially cover the investment funds. The issue is source of funds. Under the EB-5 regulation, the investor petitioner bears the burden of proving that the investment funds come from a lawful source. A lawful source can be a gift or loan. In this situation, USCIS might ask the employer to provide some documents as to how they received this funding to partially cover the petitioner's investment needs. However, I believe it can be structured either as a gift or as a loan as long as the employer is prepared to provide documentation such as a tax return or financial statement to prove the source of this loan/gift.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on September 9, 2016

  It has to be a gift. Loans have to be secured by the investor's personal assets.

• Matthew T Galati

  Immigration Attorney

  Answered on September 9, 2016

  One can receive a gift from anyone under current law, although a gift from your employer might seem to be more like income. Loans are fine, but they generally must be secured by the investor's assets (worth more than the loan amount). The forgivable loan you reference below would likely not work.

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on September 9, 2016

  Both loans and gifts, properly structured and from legal sources, are acceptable for EB-5 investment funding. Consult an attorney for review of documents governing the arrangement of those loans and gifts to ensure they meet EB-5 requirements particularly since your source of funds is coming from your employer.

• Vaughan de Kirby

  Immigration Attorney

  Answered on September 9, 2016

  A loan secured by the applicant's assets is valid - it must be secured and cannot be non-recourse. You should speak to your investment immigration attorney regarding the gift as it is possible Congress will limit gifts to immediate family members in the near future. I think a "forgivable" loan would be problematic as it would not be properly secured by your assets.

• Tina Tian

  Immigration Attorney

  Answered on September 9, 2016

  A gift would be a better solution; however, the gift letter has to be very carefully drafted to the EB-5 source of fund purpose.

• Salvatore Picataggio

  Immigration Attorney

  Answered on September 9, 2016

  There are many approvable ways to receive funds. What works best for you will depend on your specific circumstances and goals, which will best be determined by retaining experienced EB-5 immigration lawyers. From your examples, there may be several approvable paths.