EB-5 investment loans are sometimes acceptable for use in pursuing an EB5 green card. You may invest loans in the EB-5 investor visa program under the following circumstances:
- You must personally take on the loan, rather than taking on debt through your company.
- The loan must be backed by your personal assets.
- Any loaned money you invest to get an EB-5 green card must be available to be legally seized if you cannot repay your debt. Legal seizure indicates that your personal assets can be taken and used to repay your debt if you fail to pay it on your own.
- You must finish repaying your debt within the two-year period of conditional residency, to obtain your permanent, non-conditional EB5 green card.
- You may not invest loans you obtain using your EB-5 enterprise as security, regardless of whether these loans are provided by the enterprise itself, or by another entity.
EB-5 Investment Loans and Essential Professional Assistance
EB-5 investment loans can make obtaining a green card possible for some, but can also complicate the process. If you invest a loan to obtain an EB5 investor visa, your immigration attorney will assemble all documentation, such as the loan agreement, and present all proof to USCIS to increase the odds of your EB-5 petition approval.
Keep in mind that USCIS will track the source of EB-5 investment loans even more carefully than personal funds. USCIS will be careful to ensure that you acquired your EB-5 investment loans legally. USCIS will also make sure the entity making the loan acquired the funds legally, and that your assets can be seized should you fail to repay the loan.
A skilled immigration lawyer will be able to help you use EB-5 investment loans to obtain an EB5 green card.
Promissory Notes and EB-5 Investment
If you do not currently have the capital required to obtain an EB5 green card, you may be able to present an EB-5 investment loan in the form of a promissory note. The promissory note must be presented to the enterprise in which you have chosen to invest. A promissory note is an irrevocable promise of payment. In the context of EB-5 investor loans, a promissory note cannot have escape clauses; it must be unconditional.
You must ensure that the amount stated in the note is backed by your personal assets before you can use a promissory note as proof that you have begun the Eb5 investment process, and can petition for an EB-5 investor visa. As of 1998, however, your bank statement cannot be used as security for your promissory note.
A promissory note counts towards your EB-5 investment based on its fair market value (FMV) rather than its face value. Before 1998, promissory notes were counted at face value. After 1998, the value of your promissory note is determined by the FMV of your assets, what portion of these assets can be seized, the value and conditions of the promissory note, and whether or not the note becomes discounted if your assets are seized as security. Keep in mind that you cannot use foreign property to back your promissory note, due to complications with seizing foreign property to pay US debt.
As of 1998, you must complete payments on your promissory note within the two-year period during which you maintain your EB-5 investment. Keep in mind that before you have paid off your promissory note in full, you cannot make an arrangement with the company in which you invested to sell your portion back to the partnership.
Your immigration lawyer can help you work through the practical and legal details of making an EB5 investment using a promissory note, as USCIS requirements regarding this arrangement change frequently.