Perhaps the most important aspect of any EB-5 Petition is the Lawful Source of Funds requirement by USCIS. For apparent reasons, USCIS must ensure that every petitioner has acquired the funds to make their EB-5 investment through lawful means.
Given the different accounting and taxing principles around the world, this sometimes proves to be difficult to trace. Through no fault of the attorney or investor, some countries simply do not practice the standard of record keeping required by USCIS. This hurdle may be overcome by providing affidavits and other evidence and documentation to get around the deficiency.
Communication between the client and the attorney is most crucial during this stage of the EB-5 process. An attorney may only perform his/her job when the client has made a complete disclosure of their source of funds. USCIS needs to see the money traced back to its origin.
For example, if an investor claims to have gained the funds for the investment through the sale of a property, he must show more than just the bill of sale for that property. USCIS will want to see that he was in fact the owner of the property, and owned it for a reasonable time. This may be proved by the investor providing his original purchase agreement, or other evidence to prove ownership.
Although the EB-5 Investment is $500,000 for Regional Center Projects located in target employment areas, there are other costs associated with the investment. Generally an administration fee is assessed to the Petitioner. Although an attorney should not have to account for the administration fee in the Lawful Source of Funds, the trend among EB-5 attorneys has been to provide documentation accounting for that money. The last thing an attorney wants is to give USCIS an excuse to issue a Request for Evidence (RFE).
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The Information contained in this blog is for information purposes only, and should not be considered legal advice for any individual case or situation. The information provided is not a substitute for consultation with an attorney. No attorney/client relationship is created by the information contained herein.
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