EB5 Investors Magazine | Page 62

Continued from page 59 their funds, unless the company issuing the loan happens to be a licensed lending institution. Finally, if passed, the new law may provide USCIS with statutory authority to deny cases where the investor uses loan proceeds from a home-equity loan using a third party’s property as collateral. FUNDS Restrictions on Gifts Currently, neither the regulations nor the INA place any restrictions on gifted funds as the EB-5 investment. Instead, under USCIS policy, investors only have to document the source of the gifted funds and provide an affidavit confirming that the investor has no obligation to repay. Investors could use funds gifted by any relative, friend, or employer as their EB-5 investment. Restrictions on Home-Equity and Company-Equity Loans Under the proposed bill introduced by Senators Grassley and Leahy, “[c]apital that is derived from indebtedness can only be counted toward the minimum capital investment requirement only if such capital is (i) secured by assets owned by the investor.” Further, the lender must be either a “reputable” bank or licensed lending institution. It appears that the legislation is allowing for a scenario wherein USCIS has the power to determine the reputability of a bank after I-526 filing, when the investor has already obtained the loan and investe d the capital. If the bill passes as-is, it appears that investors would no longer be able to use a company-equity loan as the source of Under the proposed bill, an investor may only use gifted funds for EB-5 investment if the funds are gifted by a spouse, parent, child, sibling or grandparent. Additionally, if a “significant portion” of the EB-5 funds are gifted, the giftor must also provide seven years of tax returns prior to the I-526 filing and documentation of any monetary judgments against the giftor. The amount of funds that would constitute a “significant portion” of EB-5 funds is not defined. Unfortunately, the bill does not take into account cultural differences that exist in other countries. For example, in many Asian countries, especially China and India, the concept of a “nuclear family” is non-existent. Instead, a family unit can include multiple generations, many of whom may live together or co-mingle finances, and co-raise children. Accordingly, in such countries it is common for relatives, such as cousins, aunts, uncles, nephews and nieces, who are considered to be distant relatives in the United States, to gift large sums of money to each other. Conclusion The recent and proposed changes in SPOF adjudications are causing uncertainty in the EB-5 space at a time when, with the establishment of the IPO, it is reasonable to expect more transparency and consistency with no changes in policy. With processing times of over 14 months and a visa backlog of two years, consistency in EB-5 adjudication is vital. Investors do not have the luxury of awaiting a decision based on new policy changes, or of re-packaging the source of funds and waiting another 14 months for adjudication. ★ Anusree Nair (Anu) is an associate at the Klasko Immigration Law Partners LLP Philadelphia office. She leads the investor division of the firm’s EB-5 practice, which includes the preparation and filing of I-526 petitions, consular processing and adjustment of status applications and I-829 petitions. Nair is responsible for the preparation and filing of all I-526 petitions, both through the regional center investments and individual investment opportunities. She has extensive experience working with investors to document complex source and path of funds; Nair’s command of source and path of funds issues has been recognized within the field and she is called on frequently to review I-526 petitions prepared by other firms engaged in EB-5 practice to ensure their own compliance with the extremely rigorous USCIS standards. She routinely represents clients at their visa interviews at the U.S. Consulates Anusree Nair overseas or with the Citizenship and Immigration Services in the United States. 60 EB5 INVESTORS MAGAZINE