To qualify for an EB-5 visa, the investor will need to show that the invested capital came from a lawful source. In general, funds obtained by any lawful means are acceptable, including a gift from a family member or other individual. To prove a gift as the lawful source of the investment funds, substantial supporting documents will need to be included with the EB-5 application submitted to the U.S. Citizenship and Immigration Service. The following documents, if available, should be included with the application to prove that a gift is the lawful source of the investment funds.
• Income tax returns for the past five years. If a part of the investment capital comes from the investors own income, then the investor should submit his or her individual tax returns for the past five years. In situations where a company pays taxes on behalf of the employee, records from the company showing that such filings have been made should be included with the EB-5 application. An inability to provide tax returns may be offset by providing the other mentioned documents in this section. USCIS will look at the submitted documents as a whole when determining the lawful source of the investment capital.
• Investor’s capital source statement. The investor should include a statement detailing who the gift came from, how the giftor accumulated the gifted funds and an explanation that the gift was made for investment EB-5 purposes.
• Documents establishing that the gifted funds came from a lawful source. The EB-5 application will need to include evidence demonstrating how the giftor accumulated the funds gifted to the investor. Although the investor will not need to trace the source of the specific funds from the giftor, the investor will need to provide at least some basic evidence that the giftor has lawful income that could account for the accumulation of the gifted funds. Documents evidencing the lawfulness of the giftor’s funds include:
1) Giftor’s capital source statement. The investor should include a statement by the giftor detailing how the giftor accumulated the gifted funds.
2) Income tax returns for the past five years. The giftor’s individual income tax returns and, if applicable, business tax returns for the past five years. If the giftor has not filed tax returns at any time during the previous five years, an explanation should be included with the EB-5 application.
3) Other documents. Other documents demonstrating the lawfulness of the giftor’s funds will depend on how the giftor obtained the capital. The same documents used to prove the lawfulness of the investor’s source of funds may be used to prove the lawfulness of giftor’s capital. For example, if the giftor lawfully accumulated his or her salary over time, documents that help demonstrate this accumulation include an income certificate from the giftor's employer, the giftor's employment contract, and the giftor's bank statements demonstrating salary payments accumulated over time. Please refer to the appropriate source of funds section of our website for a list of documents that may be used to prove the lawfulness of the giftor’s capital.
Please note that these are general suggestions and by themselves do not guarantee approval of an EB-5 submission. At Jatoi & de Kirby, APC, we can help you through the entire EB-5 process – and help you make the best decision for you and your family. Call us today to schedule a free meeting at 415-221-2345.
