The EB-5 Immigrant Investor Program allows foreign investors to apply for a green card upon investing the required amount of capital in a US commercial enterprise and creating (or planning to create) at least ten full-time jobs for qualifying US workers. 

Can an EB-5 investment be a gift? Read on to find out.  

Can an EB-5 Investment be a Gift? – Understanding the Concept  

The United States Citizenship and Immigration Services (USCIS) does not have specific regulations addressing the use of gifts as a source of funds for EB-5 investments. In this context, it is fundamental to observe the ownership aspect. 

One of the primary elements of a successful EB-5 application is establishing the petitioner’s legal ownership of the amount invested. In case of the applicant does not own the amount directly (e.g., loans), the applicant must show that the capital is secured by personal assets. 

USCIS defines the term “capital” as “cash and all real, personal, or mixed tangible assets owned and controlled by the immigrant investor.” As expected, the amount invested must be valued at fair-market value in US dollars. 

The agency’s definition of capital does not include:  

  • “Assets acquired, directly or indirectly, by unlawful means (such as criminal activities) 
  • Capital invested in exchange for a note, bond, convertible debt, obligation, or any other debt arrangement between the immigrant investor and the new commercial enterprise 
  • Capital invested with a guaranteed rate of return on the amount invested, or 
  • Capital invested that is subject to any agreement between the immigrant investor and the new commercial enterprise that provides the immigrant investor with a contractual right to repayment, except that the new commercial enterprise may have a buy back option that may be exercised solely at the discretion of the new commercial enterprise” 

Additionally, USCIS may consider a promissory note (promise to pay) as “capital” in certain circumstances. 

Can an EB-5 Investment be a Gift? – Taking a Closer Look 

While there are no statutory or regulatory rules explicitly addressing the matter of gifts for EB-5 investment purposes, USCIS’s Policy Manual (PM) used by adjudicators has language backing the use of gifts as legitimate sources of EB-5 investment capital. 

As part of the sources of capital established by the USCIS-PM, the manual has provisions stating that “gift instruments documenting gifts to the immigrant investor.” Additionally, the investors must provide: 

  • “Evidence of property ownership, including property purchase or sale documentation, and  
  • Evidence identifying any other source of capital,” which may be relevant in certain cases involving gifts and/or inheritance” 

Hence, gifts can be used as feasible sources of EB-5 investment if: 

  • The petitioner can establish that he or she is the legitimate owner of the funds 
  • The funds must be a gift that was given without any expectation of repayment or any form of value in return, and  
  • The petitioner must establish that the funds given to him or her were obtained lawfully by the giver 

Do You Want to Use a Gift to Fund an EB-5 Investor Application? – Immediately Seek Expert Legal Guidance 

You do not need to expose your EB-5 petition to unnecessary risks. Contact Immigration Attorney Romy B. Jurado today by calling (305) 921-0976 or emailing [email protected] to find the best immigration strategy to obtain an EB-5 visa.

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