Common EB-5 Documentation Pitfalls

For individuals and their dependent family members who would like to live in the United States, the EB-5 visa program is one of the quickest paths to a Green Card. By making a qualifying investment of $1,050,000, or $800,000 for targeted employment area projects, foreign nationals can obtain permanent residence in the U.S. for themselves and their families.

Potential investors should know that the steps and timeline of the EB-5 process can vary based on factors like the investor’s country of origin, investment pathway, choice of EB-5 project, and specific case details. No matter what, though, the process always requires careful planning and preparation of documents.

Some documents are required by the United States Citizenship and Immigration Services (USCIS) from each investor, with additional documentation likely to be needed under special circumstances. Depending on the type, some EB-5 documents are assembled and submitted by the investor, some by an immigration attorney, and some by the regional center or EB-5 project developer.

In this article, we will detail the documents required for an EB-5 visa application and the common pitfalls related to them.

Documents Required for an EB-5 Visa Application

According to USCIS, documents that must be submitted with an EB-5 visa application are related to investment in a USCIS-designated regional center, the investment itself, lawful capital, and identification documents.

Each of these documents has its own unique requirements and, as a result, its own potential pitfalls.

Identification

You must submit a photocopy of your government-issued identification, which may include a copy of your passport. Other personal documents may also be submitted along with the immigrant visa petition.

Investment in a USCIS-Designated Regional Center

To demonstrate that you’ve invested in a qualifying regional center, you must provide a copy of the receipt notice from the regional center’s Form I-956F, Application for Approval of an Investment in a Commercial Enterprise. In essence, this is the document issued to USCIS to show that the sponsored project will meet the requirements of an EB-5 project.

Relatedly, you must also submit evidence that you have invested or are actively in the process of investing the required amount of capital.

According to USCIS, evidence that can demonstrate this includes the following:

• Copies of bank statements showing amounts deposited into the U.S. business accounts for the new commercial enterprise (NCE).
• Evidence of assets that have been purchased for use in the NCE.
• Evidence of property transferred from abroad for use in the NCE.
• Evidence of monetary amount transferred or committed to be transferred to the NCE in exchange for shares of stock that cannot be taken back at the holder’s request.
• Evidence of borrowing that is secured by assets owned by the petitioner (other than those of the NCE) and for which the petitioner is personally and primarily liable.

Lawful Source of Funds

For most EB-5 investors, the most challenging step during their EB-5 visa application is gathering the source-of-funds documentation for their Form I-526E application.

During this process, applicants need to submit a thorough documentation package to prove the lawful origin of their capital—and an incomplete or contradictory application may result in significant delays or an outright denial. In fact, unsatisfactory source of funds documentation is the most common reason for I-526E denials.

The earlier EB-5 investors start gathering the needed records, the faster they can file Form I-526E and begin the EB-5 immigration process.

It’s crucial to submit evidence that the capital you invested or are actively in the process of investing—as well as any funds used to pay administrative costs and fees—were obtained through lawful means.

According to USCIS, evidence of this kind can include the following:

• Foreign business registration records.
• Tax returns of any kind filed by you or on your behalf within the last seven years in or outside of the United States.
• Evidence of other sources of capital, as well as certified copies of any judgments or evidence of all pending governmental actions and any private civil actions involving monetary judgments against the petitioner from any court in or outside of the United States within the past 15 years.
• The identity of any person who transferred capital used for your investment into the United States on your behalf.

If your investment funds were gifted or borrowed, submit evidence from the donor. If not from a bank, you also need to demonstrate that the lender’s funds were obtained through lawful means. The funds need to be gifted or loaned in good faith, meaning that they were not gifted or loaned to circumvent any limitations imposed on permissible sources of capital, including proceeds from illegal activity.

While reviewing an EB-5 investor’s source-of-funds documents that were submitted with their Form I-526E, USCIS looks for proof that the investor’s funds were sourced lawfully and all required taxes, both in the United States and abroad, were paid on the funds.

USCIS has a high standard for this section of an applicant’s Form I-526E, requiring investors to prove the legality of their funds with a “preponderance of the evidence.” This means that simply providing tax returns is almost never enough—instead, investors have to provide more precise records to confirm the legality of their funds.

This applies to gifted funds as well. USCIS applies the same level of scrutiny on where the gifted funds come from. Similarly to when investing their own funds, investors have to provide detailed documentation of the source of the gift, including the donor’s financial history and the legitimacy of the donor’s income.

Common Documentation Challenges

Permission for the investor to go through the EB-5 process will be granted based on a review of these documents by USCIS. This is why the documents must be thorough, complete, and carefully reviewed by all interested parties and their immigration attorneys to avoid any denials or delays.

To help you avoid any issues, we’ve detailed some common documentation challenges below.

Inadequate or Incomplete Evidence

Investors sometimes provide incomplete or insufficient documentation to trace the origin of their funds. For example, if the investor’s funds come from multiple sources (e.g., sale of a property, inheritance, and business income), USCIS requires a clear paper trail for each source.

Lack of Detailed Financial Records

Investors may not have proper records—such as tax returns, bank statements, or contracts related to the sale of assets—to prove the legality of the funds. Moreover, EB-5 investors from certain countries do not have access to tax returns. In this case, investors should submit a declaration from a tax professional explaining why the tax returns are unavailable and describing the investor’s tax situation.

Complex Financial Structures

In some cases, investors may have funds derived from complex financial transactions, offshore accounts, or corporate structures. Such sources are often difficult to trace and document clearly.

Avoiding Common Documentation Challenges

Keeping detailed records of your financial transactions is the best way to avoid many of the challenges we detailed so far. However, as mentioned above, in some cases, an EB-5 investor may be unable to obtain certain documents to prove the lawful source of their funds.

In such situations, an investor can file a declaration explaining why they cannot obtain and present the necessary documentation. Although USCIS officers have been known to accept such declarations (if they are detailed and provide valid reasons), it is still best to avoid using declarations whenever possible, and you should only resort to them as a last option.

It is also important to note that while primary evidence on its own can prove someone meets an eligibility requirement, because secondary evidence doesn’t come from an authoritative source, it only suggests a fact is “probably true.” As a result, EB-5 investors providing secondary evidence must show that reliable primary evidence wasn’t available at the time of filing.

Notably, some documents, like medical results, labor certifications, and affidavits, must be submitted in their original form. For other documents, applicants can send copies with their physical applications.

Furthermore, all foreign-language documents must have certified English translations attached. USCIS requires the translator to certify that the translation is complete and accurate and that the translator is capable of adequately translating the foreign language into English.

Lastly, even though it is not a requirement, investors are encouraged to use third-party services to verify that the source of funds is legitimate. Having independent financial institutions or certified professionals verify the documentation makes the process more reliable.

EB5AN Helps Reduce Your Risk

Demonstrating that your investment capital was legally acquired can be complex, with unique challenges based on your country of origin. Partnering with immigration attorneys who focus on EB-5 and are experts in crafting related petitions can make this journey much smoother. In particular, it is crucial to work with someone knowledgeable about the legal frameworks and tax requirements in your home country to prevent extended delays in gathering the necessary documents.

It is also important to work with an experienced regional center team who can save you both time and costs. This is where EB5AN comes in.

EB5AN has helped more than 2,300 families from over 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and we offer clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate to date.

To learn more about EB-5 documentation and how you and your family members can become lawful permanent residents of the United States, book a free call with us today.