EB-5 Investments for Children: What Parents Need to Know About Gifting Investment Funds

The United States offers access to a top-quality public education system, better job opportunities, and several new freedoms to immigrants. An EB-5 visa is a permanent immigrant visa (a Green Card) that allows foreign nationals and their children to make a permanent move to the United States and enjoy the benefits and opportunities this country has to offer.

The U.S. government established the EB-5 Immigrant Investment Program in 1990 to promote economic growth in the United States through the creation of jobs for U.S. workers.

A foreign national can obtain an EB-5 visa by investing in a job-creating commercial enterprise in the United States under the EB5 program. An EB5 immigrant visa allows the investor to live and work in the U.S. for a period of two years. At the end of the two-year period, the conditions can be removed from their Green Card, provided that the requirements of the EB-5 program have been met. A permanent resident is eligible to apply for U.S. citizenship five years after the issue of a Green Card.

Unmarried children of the primary EB5 investor who are under the age of 21 also qualify to receive EB5 visas under the EB5 program as dependents. However, if, for example, a foreign national isn’t prepared to immigrate to the United States but would like their children to do so, their children can invest in the EB5 program as primary investors and obtain EB5 visas themselves, provided they meet the program’s requirements.

The EB5 program requires an investment of at least $800,000. Young adults and children may not have the necessary funds, but parents can gift money to their children and enable them to immigrate.

In this article, we will discuss how young adults, children and international students can move permanently to America through the EB-5 program and how parents can assist them.

EB-5 Visas for Families

There are several steps a person seeking immigration must take in order to obtain permanent resident status under the EB5 program for themselves and each immediate family member.

The investor must first invest a minimum amount in a new commercial enterprise (NCE). If the NCE is located in a targeted employment area (TEA), the minimum is $800,000. If outside a TEA, the minimum is $1,050,000. This investment must create and sustain at least ten full-time positions for U.S. workers for a minimum of two years.

The investor then files either a Form I-526 Immigrant Petition by Standalone Investor, or Form I-526E Immigrant Petition by Regional Center Investor, with United States Citizenship and Immigration Services. This visa petition must contain key details about the EB-5 capital and the investor.

Once the investor has received I-526/I-526E visa petition approval, they can obtain an EB5 visa from the National Visa Center. The investor and their family members each files a Form DS-260 Immigrant Visa Application with the U.S. Department of State if living outside the United States (or Form I-485 if already living in the United States). Once the investor and their family have obtained their EB5 visas they become conditional permanent residents of the United States. After two years of conditional permanent residency, they can seek approval for permanent residence status (a Green Card).

This is the usual immigration process for EB-5 foreign investors looking to move with their children to the United States.

Gifting Investment Funds to Children

Can children under 18 apply for EB 5 immigration? The answer depends on each situation.

Children under 18 usually cannot be a party to a legally enforceable contract. Despite this, the legal guardian of an applicant under 18 may be able to co-sign the paperwork.

Another factor to be considered is that the large investment amount (a minimum of $800,000) required under the EB5 program will exceed the financial capacity of most young people. This is where parents can assist. There is nothing to preclude parents from gifting lawfully obtained funds to their children to allow them to apply for an EB-5 immigrant visa under the EB5 program.

Requirements for Gifting Funds to Children

An investor’s funds under the EB5 program must be legally sourced. Legal sources include salaries, dividends, gifts from family or friends, inheritances, proceeds from the sale of real estate, and the sale of stocks. Therefore, a child can simply indicate on the I-526/I-526E visa petition that the funds are a gift from their parents and also demonstrate the original source of those funds. The gift should be permanent, with no obligation to pay back the funds.

Providing evidence of the source of an investor’s funds can be difficult. We recommend that investors engage an immigration attorney with experience in immigration law for guidance through the immigration process and help to identify the necessary documentation. A good attorney client relationship will help to keep the immigration process on track and help to avoid costly mistakes.

EB-5 Visas for International Students

International students in the United States made up around 5.5% of the total U.S. student body in 2019. And the United States is home to the largest number of international students in the world, numbering over one million.

It’s not surprising that the United States is such a popular destination for international students. It can offer a well-rounded, high-quality education; practical knowledge and skills in new technologies; opportunities for research; and a multicultural environment in which to learn.

Inevitably, after seeing the benefits and opportunities available to U.S. residents, many international students seek to live and work permanently in the United States. EB5 visas are an appealing means of achieving permanent resident status.

Most international students studying in the United States have an F-1 non-immigrant visa that is only valid for the period while they are studying, and then they must return home.

There are four ways in which an international student can become a permanent U.S. resident. These are:

• Self-petitioning as “a person with extraordinary abilities” to get an EB-1 visa.
• Adjusting their visa status to a dual intent visa.
• Marriage to a U.S. citizen.
• Investing through the EB5 program.

The EB-5 program is widely considered the quickest and most straightforward way to obtain lawful permanent resident status.

Tips for Parents Providing Gifted Funds

Where parents intend to gift funds to their children for the purpose of investing in the EB5 program, we recommend that they:

• Begin preparations for their child’s EB5 application when they are in grade school so that they can benefit from the advantages provided by the EB5 program when it comes to enrolling in U.S. colleges and universities.
• Engage an immigration attorney to help identify the sources of investment funds that are easiest to trace and verify.
• Collect, organize, and make copies of the documentation so that these can be included in their child’s I-526/I-526E application for United States Citizenship and Immigration Services.
• Order translation services for any documents that require translation.

Advantages of Being a Student with Permanent Resident Status

Students with EB5 visas enjoy several advantages over their international counterparts:

• They can study anywhere in the country and can also study overseas without losing their lawful permanent resident status.
• They can compete on an equal footing with U.S. citizens in seeking admission to some of the best educational institutions in the world.
• Many universities and colleges give priority to permanent residents who reside in-state by capping the number of international students they accept.
• They can enjoy lower tuition fees in their states of residence.
• They can engage in off-campus employment to help fund their education.
• They do not have to periodically renew their student visas.

Permanent residence status through the EB5 Immigrant Investment Program should be seriously considered by foreign nationals as a means of moving permanently to the United States and taking advantage of its strong economy, business opportunities, and world-class educational institutions.

Even if a potential investor is hesitant to immigrate, they can still gift funds to their children to help them obtain permanent residency through the EB5 program. If those children eventually become U.S. citizens, they can, eventually petition for their parents and siblings to join them as permanent residents of the United States.

If you are interested in pursuing permanent residence in the United States, and would like more information about the EB-5 program, feel free to contact EB5AN.