California Immigrant Investors: Are Your EB-5 Visa Funds At Risk?

It may seem daunting to put thousands of your hard-earned dollars at risk to fund your EB-5 immigration visa. In fact, many investors may look for ways to get a return on that investment.

Unfortunately, the U.S. Citizenship and Immigration Services (USCIS) has strict rules surrounding at risk EB-5 visa funds. In order to qualify for an EB-5 visa, the investor’s capital must have a proven element of risk. In other words, all funds invested must have a potential for loss and a chance for gain. Since failure to prove that the entire amount of your capital has been placed at risk could jeopardize your EB-5 visa status, it is important to understand the regulations surrounding risk and capital.

Following are a few rules that can affect the total amount of your at risk EB-5 visa funds:

  • Intent to invest. Any funds that you intend to invest, but have not yet transferred into your business, will not count toward your total amount of program funds.
  • Promise of return. USCIS requires that the full amount of an investor’s capital must be at risk to some degree. If an immigrant investor is guaranteed a rate of return on a portion of his capital, that portion of the capital cannot be considered at risk. Also, if an investment clause provides for the return of a portion of invested capital, that amount is not considered to be at risk.
  • Redemption agreement. If the investor has made an agreement providing for the redemption of a portion of invested funds upon receiving permanent residence or citizenship, that portion of capital may not be included toward the minimum amount of at risk funds.
  • Owned asset value. Any assets that have been acquired by or guaranteed to the investor in exchange for his capital into the commercial enterprise—real estate, vehicles, account interest, or personal property—will be deducted from the total amount of the investor’s capital contribution to the business.

At Jatoi & de Kirby, APC, our immigration attorneys can help you assess your risk level and ensure that the amount of funds needed for your visa are invested properly. Contact us today to speak with an immigration attorney or to order our FREE immigration guide, Investor's Path to a Green Card: How Investing in America Can Put You and Your Family on the Path to Greater Wealth and U.S. Permanent Residency.