What can an EB-5 investor do if they cannot provide direct source-of-funds evidence?

United States Citizenship and Immigration Services (USCIS) requires all EB-5 investors to prove their EB-5 investment funds and any funds used to pay administrative costs and fees were lawfully sourced as a part of submitting their I-526 petition. Specifically, in its Policy Manual, USCIS states that “in establishing that the capital was acquired through lawful means, the immigrant investor must provide evidence demonstrating the direct and indirect source of his or her investment capital.”

An EB-5 investor can legally acquire their investment capital from many sources, including gifts, salary payments, real estate sales, loans, stock proceeds, inheritance, and more. It is not uncommon for EB-5 investors to need to submit multiple forms of evidence with their I-526 petition to document the sources of all their funds. An investor’s EB-5 investment funds can be derived from several sources, as long as the investor provides documentation proving the funds were lawfully sourced.

Without direct, primary evidence, an investor may be able to demonstrate lawful source of funds through secondary evidence and a totality of the circumstances. A totality of the circumstances means the court will focus “on all the circumstances of a particular case, rather than any one factor,” according to Black’s Law Dictionary.

As an example of secondary evidence, a sworn affidavit explaining where the funds originated may be suitable in certain circumstances. In the instance of an investor’s funds being derived from a gift, the person who gifted funds could provide a sworn affidavit or notarized gift letter confirming the amount of the gift and stating clearly that the given EB-5 investor does not need to reimburse the gift amount. In the case of funds being derived from an inheritance, proof of an EB-5 investor’s relationship to the deceased could include a copy of their death certificate. Sworn affidavits or letters of recommendation from trustworthy, reliable sources may also suffice.

Because proving lawful source of funds is a key requirement of the EB-5 program, it is important to retain an experienced EB-5 immigration attorney to help compile the necessary documentation.