Frequently Asked Questions

Frequently Asked Questions

Costs of Public University Education – If my child obtains an EB-5 green card as a principal applicant or accompanying family member, can my child be eligible for lower university tuition at public universities because they have residence in a state of the United States, and are there any other similar benefits for university admission?

Public universities in the United States frequently offer lower tuition to persons who are residents of the state in which the public university is located. The amount of tuition costs for public universities, and the amount of tuition discount for residents of the state, vary from state to state. Similarly, each state has its own rules how much time a person must live in a state to qualify as a “resident” of the state. The most comprehensive website we have found on the subject is located here: http://www.finaid.org/otheraid/stateresidency.phtml

Based on publicly available information, we provide below examples of how some of the more populous states generally treat in-state tuition/residency requirements. Please note that state rules and policies may change. Further, our law firm does not advise students on admission requirements to university in the U.S.

i. Texas: In-state tuition available for students who have established Texas as their principal place of residence one year prior to the first date of the academic term.

a. Admission: In Texas, current law provides that students who graduate from High School in Texas in the top 10% of their graduating class, as determined by grade point average, are given certain preferences for admission to the University of Texas at Austin – the premier campus of the University of Texas system (Texas Education Code (TEC), §51.803).

ii. California: To be classified a California resident for tuition purposes, an adult student, must have established a primary and permanent domicile in California for at least 366 days and relinquished all ties to his/her past place(s) of residence. A student with out-of-state parent(s) must prove financial independence.

iii. New York: In-state tuition available for students who have established New York as their principal place of residence one year prior to the first date of the academic term and who are financially independent from their parents.

iv. Florida: In-state tuition available for students who have established Florida as their principal place of residence for at least 12 consecutive months immediately prior to his or her initial enrollment in an institution of higher education.

v. Illinois: In-state tuition available for students who have established Illinois as their principal place of residence one year prior to the first date of the academic term and who are financially independent from their parents. In general, establishing financial independence requires a finding
that the student has not relied on support from their parents for tuition purposes.

Taxation – Would global income and assets be taxable in both India and the USA? How would the U.S.-India double taxation treaty be used to minimize the investor's tax liability?

Generally, under U.S. tax laws, persons who become U.S. green card holders (lawful permanent residents), and people who spend at least one-half of each calendar year physically present in the U.S., are likely considered residents of the U.S. for tax purposes. The general rule of the U.S. tax system is that a person who is a U.S. tax resident is taxed on their worldwide income. Assets are not usually taxed unless income is generated on the asset or the asset is sold and a taxable financial gain results. The U.S. and India have entered into a Double Taxation Avoidance Agreement which seeks to minimize situations where people and companies are taxed both in the U.S. and India. Our law firm strongly recommends potential EB-5 investors to seek professional tax advice to address their individual tax situation and enable proper tax planning. Our law firm does not advise on U.S. taxation issues.

At What Age Does My Child Stop Qualifying to Immigrate With Me to the U.S.?

Any child who is over the age of 21 at the time the I-526 Immigrant Visa Petition is filed by the EB-5 investor before U.S. Citizenship & Immigration Services (“USCIS”) is considered an adult pursuant to U.S. immigration law and is, therefore, not allowed to accompany the principal EB-5 Investor as a dependent child. If, however, the EB-5 investor files Form I-526 before the child turns age 21, and there is no waiting list for EB-5 visas, then it may be possible for the child to remain with the EB-5 investor’s visa process pursuant to the Child Status Protection Act. Please see the answer to Question 4 (below) for more details.

My Son is About to Turn 21 Years Old in Three Months. If I Invest Now, Will My Son Still Be Eligible to Get a Green Card Under My EB-5 Visa Petition?

The answer to this question depends on whether a visa waiting list exists at the time the Investor’s I-526 application is approved. The Child Status Protection Act (“CSPA”) provides some protection for family’s immigrating to the U.S. with the general aim of keeping families together. In the above situation, it is helpful to consider the following example:

i. The Investor files his/her EB-5 application when the dependent child is 20 years, 9 months old.

ii. The I-526 petition is approved 18 months later, when the child’s biological age is 22 years and 3 months. Generally, a child over the age of 21 would not be allowed to receive a green card based on his parent’s I-526 petition (initial EB-5 petition).

iii. However, the CSPA provides some relief in this situation. For the purpose of considering immigration benefits, the child’s age would be calculated in the following manner: The time that the I-526 petition was pending with USCIS (18 months, from receipt date to approval date) would be subtracted from the child’s biological age at the time the I-526 petition was approved. Therefore, in the situation above, at the time the parent’s I-526 was approved, the child’s CSPA age would be 20 years, 9 months old (22 years and 3 months minus the 18 month I-526 petition adjudication time).

iv. Therefore, after the I-526 is approved, the child’s age would is considered to be under 21 when applying for immigration benefits (such as a green card). If a green card is immediately available for Indian nationals in the EB-5 category (there is no Department of State waiting list for visas) and the Investor and child apply for their conditional green cards within a year of the EB-5 petition approval, the child’s age would remain “frozen” at his/her CSPA age after the EB-5 petition approval.

v. However, if a visa waiting list exists for Indian nationals at the time of the I-526 approval, then visas would not be immediately available and the investor and child would not be able to apply for his/her conditional green cards after the I-526 approval. In this situation, the child’s age would continue to increase after the I-526 petition is approved. Once the child’s CSPA age is over 21, the child would be considered to have “aged-out” and would be ineligible for a green card based on the approved I-526 petition.

vi. Therefore, in the situation above, if a waiting list does not exist for Indian nationals at the time of the Investor’s I-526 approval, the child would be eligible for a green card. However, if at the time of Investor’s I 526 approval, a waiting list exists for Indian nationals that is more than 3 months in duration, the child would likely age-out and be ineligible for a green card based on his parent’s I-526 petition.

I am Filing for an EB-5 Green Card and My Son is Over Age 21. What Other Visa Solutions are Available to Obtain a Green Card for My Adult Child?

A parent who obtained a green card through the EB-5 program (or other visa program) could file an immigrant visa petition for family reunification for a child who is over age of 21 and unmarried. This process would also presently involve a waiting list of approximately 7 years for children born in India. Additionally, if the adult child marries U.S. legal permanent resident or U.S. citizen, he/she would be eligible for a marriage-based green card. Finally, the adult child could also file his or her own separate EB-5 petition.

Can EB-5 Investment Funds Originate from Salary Earned in the United States?

Yes, an EB-5 investor can use investment funds earned and deposited in the United States for an EB-5 investment. The EB-5 investor will be required to prove the lawful source of the funds invested even if they are earned in the United States. If the EB-5 investor was in the U.S. while on work visa status, the EB-5 investor must demonstrate that the salary was earned while holding valid work visa status.

If My I-526 Immigrant Visa Petition is Denied, in Which Account Will My Investment Money be Returned To?

Generally, in such a situation, the regional center’s escrow bank, or the new commercial enterprise, will wire transfer the EB-5 investment capital back to the original bank account from which it was sent, or a bank account designated by the investor.

After My Permanent Green Card is Obtained After Approval of Form I-829, How Will My Investment Funds Returned to Me?

After an EB-5 investor’s I-829 petition is approved (unconditional green card), the investor will request the new commercial enterprise to return the principal capital investment amount (e.g., US$500,000). The return of investment capital depends on the success of the business of the new commercial enterprise because all EB-5 investments must be at-risk. If the new commercial enterprise has funds available to repay the principal capital investment to the EB-5 investor, the procedures established in the limited liability company operating agreement or partnershiph agreement of the new commercial enterprise will govern.

What if the I want to Convert My EB-5 Investment into Property Ownership in the Same Project Where I am Investing Instead of Seeking a Refund of the Principal Capital Investment Amount?

Pursuant to U.S. immigration law, your EB-5 investment must be at risk of profit or loss. The new commercial enterprise that is the target of the EB-5 investment cannot guarantee a profit or interest rate, and cannot guarantee the repayment of your principal capital investment amount. In recent years, USCIS has publicly stated that it is unlikely to approve an EB-5 visa petition in which the new commercial enterprise will convert the EB-5 investor’s principal capital investment amount into ownership of a condominium or personal residence. Such an investment has been regarded by USCIS as a guaranteed investment that is not at-risk. Additionally, USCIS regulations provide that an investment in building one’s own personal residence is not a qualifying EB-5 investment.

Costs of Public University Education – If my child obtains an EB-5 green card as a principal applicant or accompanying family member, can my child be eligible for lower university tuition at public universities because they have residence in a state of the United States, and are there any other similar benefits for university admission?

Public universities in the United States frequently offer lower tuition to persons who are residents of the state in which the public university is located. The amount of tuition costs for public universities, and the amount of tuition discount for residents of the state, vary from state to state. Similarly, each state has its own rules how much time a person must live in a state to qualify as a “resident” of the state. The most comprehensive website we have found on the subject is located here: http://www.finaid.org/otheraid/stateresidency.phtml

Based on publicly available information, we provide below examples of how some of the more populous states generally treat in-state tuition/residency requirements. Please note that state rules and policies may change. Further, our law firm does not advise students on admission requirements to university in the U.S.

i. Texas: In-state tuition available for students who have established Texas as their principal place of residence one year prior to the first date of the academic term.

a. Admission: In Texas, current law provides that students who graduate from High School in Texas in the top 10% of their graduating class, as determined by grade point average, are given certain preferences for admission to the University of Texas at Austin – the premier campus of the University of Texas system (Texas Education Code (TEC), §51.803).

ii. California: To be classified a California resident for tuition purposes, an adult student, must have established a primary and permanent domicile in California for at least 366 days and relinquished all ties to his/her past place(s) of residence. A student with out-of-state parent(s) must prove financial independence.

iii. New York: In-state tuition available for students who have established New York as their principal place of residence one year prior to the first date of the academic term and who are financially independent from their parents.

iv. Florida: In-state tuition available for students who have established Florida as their principal place of residence for at least 12 consecutive months immediately prior to his or her initial enrollment in an institution of higher education.

v. Illinois: In-state tuition available for students who have established Illinois as their principal place of residence one year prior to the first date of the academic term and who are financially independent from their parents. In general, establishing financial independence requires a finding
that the student has not relied on support from their parents for tuition purposes.

Taxation – Would global income and assets be taxable in both India and the USA? How would the U.S.-India double taxation treaty be used to minimize the investor's tax liability?

Generally, under U.S. tax laws, persons who become U.S. green card holders (lawful permanent residents), and people who spend at least one-half of each calendar year physically present in the U.S., are likely considered residents of the U.S. for tax purposes. The general rule of the U.S. tax system is that a person who is a U.S. tax resident is taxed on their worldwide income. Assets are not usually taxed unless income is generated on the asset or the asset is sold and a taxable financial gain results. The U.S. and India have entered into a Double Taxation Avoidance Agreement which seeks to minimize situations where people and companies are taxed both in the U.S. and India. Our law firm strongly recommends potential EB-5 investors to seek professional tax advice to address their individual tax situation and enable proper tax planning. Our law firm does not advise on U.S. taxation issues.

At What Age Does My Child Stop Qualifying to Immigrate With Me to the U.S.?

Any child who is over the age of 21 at the time the I-526 Immigrant Visa Petition is filed by the EB-5 investor before U.S. Citizenship & Immigration Services (“USCIS”) is considered an adult pursuant to U.S. immigration law and is, therefore, not allowed to accompany the principal EB-5 Investor as a dependent child. If, however, the EB-5 investor files Form I-526 before the child turns age 21, and there is no waiting list for EB-5 visas, then it may be possible for the child to remain with the EB-5 investor’s visa process pursuant to the Child Status Protection Act. Please see the answer to Question 4 (below) for more details.

My Son is About to Turn 21 Years Old in Three Months. If I Invest Now, Will My Son Still Be Eligible to Get a Green Card Under My EB-5 Visa Petition?

The answer to this question depends on whether a visa waiting list exists at the time the Investor’s I-526 application is approved. The Child Status Protection Act (“CSPA”) provides some protection for family’s immigrating to the U.S. with the general aim of keeping families together. In the above situation, it is helpful to consider the following example:

i. The Investor files his/her EB-5 application when the dependent child is 20 years, 9 months old.

ii. The I-526 petition is approved 18 months later, when the child’s biological age is 22 years and 3 months. Generally, a child over the age of 21 would not be allowed to receive a green card based on his parent’s I-526 petition (initial EB-5 petition).

iii. However, the CSPA provides some relief in this situation. For the purpose of considering immigration benefits, the child’s age would be calculated in the following manner: The time that the I-526 petition was pending with USCIS (18 months, from receipt date to approval date) would be subtracted from the child’s biological age at the time the I-526 petition was approved. Therefore, in the situation above, at the time the parent’s I-526 was approved, the child’s CSPA age would be 20 years, 9 months old (22 years and 3 months minus the 18 month I-526 petition adjudication time).

iv. Therefore, after the I-526 is approved, the child’s age would is considered to be under 21 when applying for immigration benefits (such as a green card). If a green card is immediately available for Indian nationals in the EB-5 category (there is no Department of State waiting list for visas) and the Investor and child apply for their conditional green cards within a year of the EB-5 petition approval, the child’s age would remain “frozen” at his/her CSPA age after the EB-5 petition approval.

v. However, if a visa waiting list exists for Indian nationals at the time of the I-526 approval, then visas would not be immediately available and the investor and child would not be able to apply for his/her conditional green cards after the I-526 approval. In this situation, the child’s age would continue to increase after the I-526 petition is approved. Once the child’s CSPA age is over 21, the child would be considered to have “aged-out” and would be ineligible for a green card based on the approved I-526 petition.

vi. Therefore, in the situation above, if a waiting list does not exist for Indian nationals at the time of the Investor’s I-526 approval, the child would be eligible for a green card. However, if at the time of Investor’s I 526 approval, a waiting list exists for Indian nationals that is more than 3 months in duration, the child would likely age-out and be ineligible for a green card based on his parent’s I-526 petition.

I am Filing for an EB-5 Green Card and My Son is Over Age 21. What Other Visa Solutions are Available to Obtain a Green Card for My Adult Child?

A parent who obtained a green card through the EB-5 program (or other visa program) could file an immigrant visa petition for family reunification for a child who is over age of 21 and unmarried. This process would also presently involve a waiting list of approximately 7 years for children born in India. Additionally, if the adult child marries U.S. legal permanent resident or U.S. citizen, he/she would be eligible for a marriage-based green card. Finally, the adult child could also file his or her own separate EB-5 petition.

Can EB-5 Investment Funds Originate from Salary Earned in the United States?

Yes, an EB-5 investor can use investment funds earned and deposited in the United States for an EB-5 investment. The EB-5 investor will be required to prove the lawful source of the funds invested even if they are earned in the United States. If the EB-5 investor was in the U.S. while on work visa status, the EB-5 investor must demonstrate that the salary was earned while holding valid work visa status.

If My I-526 Immigrant Visa Petition is Denied, in Which Account Will My Investment Money be Returned To?

Generally, in such a situation, the regional center’s escrow bank, or the new commercial enterprise, will wire transfer the EB-5 investment capital back to the original bank account from which it was sent, or a bank account designated by the investor.

After My Permanent Green Card is Obtained After Approval of Form I-829, How Will My Investment Funds Returned to Me?

After an EB-5 investor’s I-829 petition is approved (unconditional green card), the investor will request the new commercial enterprise to return the principal capital investment amount (e.g., US$500,000). The return of investment capital depends on the success of the business of the new commercial enterprise because all EB-5 investments must be at-risk. If the new commercial enterprise has funds available to repay the principal capital investment to the EB-5 investor, the procedures established in the limited liability company operating agreement or partnershiph agreement of the new commercial enterprise will govern.

What if the I want to Convert My EB-5 Investment into Property Ownership in the Same Project Where I am Investing Instead of Seeking a Refund of the Principal Capital Investment Amount?

Pursuant to U.S. immigration law, your EB-5 investment must be at risk of profit or loss. The new commercial enterprise that is the target of the EB-5 investment cannot guarantee a profit or interest rate, and cannot guarantee the repayment of your principal capital investment amount. In recent years, USCIS has publicly stated that it is unlikely to approve an EB-5 visa petition in which the new commercial enterprise will convert the EB-5 investor’s principal capital investment amount into ownership of a condominium or personal residence. Such an investment has been regarded by USCIS as a guaranteed investment that is not at-risk. Additionally, USCIS regulations provide that an investment in building one’s own personal residence is not a qualifying EB-5 investment.