Questions from an Indian EB-5 Investor

by Carolyn Lee

Jun 5, 2023

An Indian investor asked these thoughtful, important, and succinctly-expressed questions regarding the EB-5 process, given that he has an 18-year old son.  We post our answers knowing that these questions are on the minds of many in this one father’s shoes.

1.  I have a Son aged 18, so as per age criteria of dependent children of 21 years, if I filed a petition of I 526 right now and the approval of the petition takes more than 3 years such that my son’s age crosses 21 years then, will he be allowed for DS – 260 application?

Carolyn’s Answer: It depends on visa availability at the time of the I-526 approval. If a visa is immediately available – meaning no backlog in your EB-5 visa category for Indian investors – then, your Son’s age will remain 18. But if there is a backlog at the time of I-526 approval, then we will get to deduct the 3 years that the petition was pending, but he will continue to age from then. So if it’s 3 more years until there is visa availability, he will age out.

Please clarify – The 21 Age Criteria for Dependent Children is for Date of Petition or Date of Approval?

Carolyn’s Answer: It is the date of visa availability minus the time that the I-526 petition was pending.

2. If Invested money is financed (Loan) by an Indian Financial Institute or from a US based Financial Institute, then the Investment is qualified or Not?

Carolyn’s Answer: There is no disqualification based on a loan by an Indian Financial institute or based on a US based Financial Institute. Both may qualify, depending on overall circumstances establishing lawful source of funds.

3. If Invested money is borrowed from an Indian citizen whose income is lawfully sourced and I have no relationship with him, then the Investment is qualified or Not?

Carolyn’s Answer: There is no disqualification based on a loan from a non-relative. Again, qualification would be based on whether or not there is lawful source of funds for the EB-5 investment.

4. If Money is received as a gift from relatives, then the Investment is qualified or not? Please clarify the definition of relatives, as in Gift received from which relatives is considered?

Carolyn’s Answer: There is no disqualification based on a gift from relatives. There is no definition of relatives relating to EB-5 lawful source of funds – a gift, as long as the source is lawful, may be from parents, grandparents, uncles, aunts, siblings, and so on.

5. How much % of the amount has to be invested for initiating the petition. (i.e. full amount or Partial amount?)

Carolyn’s Answer: The full amount of the required EB-5 capital must have been invested or be actively in the process of being invested. If not the full amount of capital has been invested at the time of I-526 filing, the key is satisfying that the investor is ACTIVELY in the process of investing. There will be different ways in which an investor in good faith might satisfy this language. It will depend on the individual facts and we’ll be advising carefully to satisfy the investment requirements under the law and USCIS policy.

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