EB-5: How to follow USCIS Policy when Investor is a Minor
Since its introduction, the EB-5 Immigrant investor program has been mainly utilized by adult investors who want to move to the United States. However, things have changed, and now the world consists of many minor entrepreneurs and investors. It is now possible to secure a permanent residence in the United States for an investor as a minor. The United States Citizenship and Immigration Service stated in 2016 that minors are allowed to be the primary applicants for the EB-5 visa provided that they provide sufficient evidence to prove that they have an investment contract that is valid and not voidable.
If you are a minor or are a parent to a minor looking to invest in the United States under the EB-5 Investor program, this post by RunRex, a top firm handling immigration cases in the United States, will help you navigate through the process by following the USCIS policy.
Minors investing in the United States using the EB-5 visa is made possible by the Uniform Transfers to Minors Act; famously known as UTMA. Usually, when a minor enters into a contract as a minor in the United States, they typically can void the contract when they attain adulthood status. The EB-5 program requires that the investors establish contract validity and the Uniform Transfers to Minors Act comes into play here to enable this.
You must meet all the set conditions for eligibility for an EB-5 visa as a minor under the act and prove beyond doubt that you are competent enough. The requirements that have to be met by the investor include:
The Investment funds have to be ‘At Risk.’
Just like an adult investors, even minor investors’ funds have to be ‘At Risk’ to qualify them for the program. The funds being ‘At Risk’ means that there can be no guarantee that the investor will get back the funds they invest. It is one of the main issues that usually lead to applications by minor investors to be rejected. As highlighted earlier, once a minor becomes an adult, they have the ability and choice of voiding a contract. It means that the investment funds are not really ‘at risk.’
However, one can navigate around the issue by arguing and proving that they (the minor), under a foreign jurisdiction law, are competent or they can get the parent to the minor to act as a legal representative on behalf of the petitioner and sign the subscription agreement. It is essential to exercise caution when drafting the agreement to ensure that the call for the application of the foreign law regarding the capacity of the minor.
Choice of law
While the subscription agreement might call for the application of designated foreign country laws, other factors are, also, considered to determine whether the law will be applied or not. These include the location where the contract was signed, what provisions of the law are to be implemented in the agreement, the nationality of the parties, the location of the assets that are included and discussed in the contract, among others.
The Minor Investor must manage the enterprise they invest in actively
The United States Citizenship and Immigration Services may require the minor investor to provide proof that they are legally competent to handle the business they will invest in by being a member or a partner of a limited liability company. The inability of the applicant to serve as a member or a partner of a limited liability company legally means that they cannot sufficiently engage in the management of the enterprise as per the requirements of the EB-5 visa program.
Minor investors must file the petition on their behalf
It is possible for the parents of the minor investor to sign the subscription documents for them, this could give the United States Citizenship and Immigration Services the chance to raise the concern that the petitioners did not file the petition on their behalf as required. It is, however, important to note that signing Form I-526 and the subscription agreement is not the same thing. There is a definite distinction. As such, while the parents can sign the subscription agreement, the minor should be the one to sign the Form I-526 to avoid their application being rejected.
Applying for all United States visas is usually very tedious and challenging, but the EB-5 visa program is even worse. Things get even tougher for minors since the application process is a bit different. Therefore, to ensure that the subscription agreements are drafted carefully, and the Form I-526 is filled correctly, it is advisable to employ the services of a qualified, knowledgeable and experienced immigration attorney.
An immigration attorney will be able to provide the necessary guidance and help you take the required measures that ensure you have complied with all the requirements needed for the EB-5 Visa application. A successful application is only possible through due diligence. It will help protect the interests of the minor investor. With enough research, patience, and keenness, a minor investor can get their I-526 petition approved.