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For information only (and you should seek independent advice to ascertain whether you are a "US Person"), under Regulation S, "US Persons" include the following:

  • any natural person resident in the United States;
  • any partnership or corporation organized or incorporated under the laws of the United States;
  • any estate of which any executor or administrator is a U.S. person;
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  • any discretionary or similar account (other than an estate or trust) held by a dealer or other fiduciary organized, incorporated or, if an individual, resident in the United States, provided that any such account held on behalf of a non-U.S. person by a dealer or other fiduciary organized, incorporated or, if an individual, resident in the United States is not a U.S. person; and
  • any partnership or corporation if (1) organized or incorporated under the laws of any foreign jurisdiction, and (2) formed by a U.S. person principally for the purpose of investing in securities not registered under the Securities Act, unless it is organized or incorporated and owned by accredited investors under Rule 501(a) of the Securities Act who are not natural persons, estates, or trusts.

In order for an individual to qualify as an accredited investor, he or she must accomplish at least one of the following:

  • earn an individual income of more than $200,000 per year, or a joint income of $300,000, in each of the last two years and expect to reasonably maintain the same level of income.
  • have a net worth exceeding $1 million, either individually or jointly with his or her spouse, not including their primary residence.

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October 8, 2018

USCIS’ Independent Investigation on Source of Funds of EB-5 Investors

By: Vivian Zhu

The Employment-Based Fifth Preference (EB-5) immigrant visa category was created to stimulate the U.S. economy through job creation and capital investment by foreign investors. In order to qualify, an EB-5 investor must invest at least $500,000 into a new commercial enterprise, and prove, among other things, that the investment funds were “obtained through lawful means.” The standard of proof for investors’ source and path of funds specified in the EB-5 regulations is the “preponderance of the evidence” standard, which means the USCIS officer must determine that it is “more likely than not” that the claims in the petition are true. However, USCIS adjudicators often request a substantial amount of documentation to prove lawful source of funds and apply higher standards of proof when adjudicating investors’ cases.

It is not news that USCIS may also conduct independent investigations on the investor and/or the EB-5 source of funds, sometimes through U.S. embassies and consulates abroad, instead of relying solely on the documents submitted by the foreign national in the I-526 petition. Independent investigations are usually triggered when the foreign national submitted inconsistent information to the U.S. government or discrepancies exist between the foreign national’s immigration filings and public records.

The steps taken by USCIS in its independent investigations can range from a simple internet search of the investor to more rigorous, sometimes invasive inquiries, such as phone call or unannounced visit to the investor’s company, interview the company’s accounting or human resources staff, phone call or visit to the CPA who prepared the investor’s financial statements or audit reports, inquire with local tax office to verify the investor’s or his company’s tax filings, inquire with local housing authority to verify the investor’s mortgage or property information.

Such investigations may be followed by an extensive Request For Evidence (RFE) or Notice of Intent to Deny (NOID) from the USCIS if the findings of the investigation cast double on any aspect of the investor’s source of funds or on the reliability of the evidence submitted in support of the investor’s EB-5 petition.

To avoid delays and inconvenience caused by USCIS investigations, the investor and attorney should:

Make strategic decisions regarding which source to use to prove the lawfulness of the source of funds;

Review all nonimmigration applications previously filed by the foreign national and make sure the source of funds documents are consistent with previously submitted information;

Search local government database and check for any inconsistent or inaccurate information about the investor or the investor’s company;

If the source of funds involves the investor’s company, make sure that the company is in compliance with local laws and regulations (including tax laws);

Company letters and certifications should be signed by authorized individuals and state the name, job title, and multiple forms of contact information for the signer; and

Submit valid contact information of investor and/or his company and inform relevant parties of possible inquiries regarding the investor’s source of funds.

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