How the EB-5 Program Works for Married Couples

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    How the EB-5 Program Works for Married Couples

    The EB-5 Immigrant Investor Program provides a path to legal permanent residency, or a ‘green card’, for those willing to invest capital into commercial enterprises within the United States.

    While this program opens opportunities for individuals looking to immigrate, it also extends benefits to married couples seeking to build new lives together in America.

    In this detailed guide, we’ll break down how the EB-5 Program works specifically for husband and wife teams interested in this investment immigration option.

    Let’s delve in.

    EB-5 Program Eligibility Requirements for Married Couples

    Let’s start with the basic eligibility criteria married couples must satisfy to participate through the EB-5 Program:

    Marital Status – Both spouses must be legally married at the time of EB-5 immigrant petition filing. Divorced or separated couples do not qualify under this married investor category.

    Investment Amount – Currently, the minimum qualifying investment amount is $900,000 that must be pooled together between both spouses. This doubles the standard individual investment threshold of $500,000.

    Job Creation – The business or project the married couple jointly invests in must reasonably be expected to create or preserve at least 10 full-time jobs for U.S. workers within 2 years of receiving EB-5 permanent residency.

    Lawful Source of Funds – Each spouse must demonstrate the lawful origin of their portion of the $900,000 combined investment through documentation such as bank statements or tax returns. Funds cannot be obtained from illegal activities.

    Those are the basic qualifying parameters married couples need to satisfy in order to be eligible to apply for conditional permanent residency, or a conditional green card, under the EB-5 Program as joint married investors.

    Filing Process for Married Investor Teams

    If eligibility criteria are met, the next step is to carefully navigate the multi-step EB-5 filing process as a married couple. Here are the key stages:

    Identify & Engage Regional Center – Find an approved EB-5 regional center most aligned with your location and investment industry preferences to sponsor your project. The regional center will guide you through the rest of the filing steps.

    Complete I-526 Petition – File Form I-526 Immigrant Petition by Alien Entrepreneur simultaneously on behalf of both spouses to obtain conditional status. Extensive supporting documentation is required to prove job creation projections and lawful funds.

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    Undergo Medical Exams – Each spouse will need to pass immigrant visa medical examinations clearing any health issues before permanent residency can be granted.

    Submit I-829 Petition – Approximately 2 years after obtaining conditional green cards, you’ll need to submit Form I-829 Petition by Entrepreneur to Remove Conditions to receive permanent 10-year green cards. At this stage, actual job creation from your investment must be proven.

    Naturalize to U.S. Citizenship – After maintaining permanent residency for 5 continuous years (or 3 years if married to a U.S. citizen), both spouses become eligible to apply for naturalization and U.S. citizenship through the naturalization process.

    Proper preparation and diligent documentation at each stage helps ensure married EB-5 participant couples smoothly navigate the filing procedures to obtain conditional and then permanent resident status in the United States. Working closely with an experienced immigration attorney is highly recommended.

    Deciding on Roles Within the Investment

    With the basic eligibility and filing process covered, married couples must also determine how to structure their $900,000 joint EB-5 investment in terms of roles, ownership, and responsibilities held by each spouse. There are a few common approaches:

    Joint Ownership & Equal Control – The spouses jointly own the full $900,000 investment amount at a 50/50 split and share equal authority over investment decisions. Tax documents would list them as co-owners.

    Primary & Secondary Investor Designation – One spouse is designated the primary investor putting in a slightly larger portion like $500,000 versus the secondary investor’s $400,000. However, both names are on files with shared ownership and control maintained.

    Asset Segregation Based On Income Source – If funds came from separate pre-marriage assets, those specific assets may be kept segregated under the individual ownership of each contributing spouse for tax purposes though still pooled for EB-5 eligibility.

    Establishing clear roles upfront helps avoid potential issues down the road should the marriage dissolve. A legal agreement outlining investment ownership percentages, responsibilities, divorce contingencies, and more provides protection and peace of mind for married EB-5 participants.

    Additional Benefits for Spouses

    While the EB-5 Program’s core benefit is obtaining a path to lawful permanent residence and potential citizenship, there are supplementary advantages gaining residence through the married investor category provides to spouses:

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    Family Unity – Spouses avoid prolonged separation that typical immigration processes can cause by allowing families to immigrate together under one application.

    Portability of Status – If one spouse’s conditional green card expires ahead of the other, remaining in lawful status is still possible through the spouse holding a valid card.

    Work Authorization – Upon obtaining conditional residence, both spouses receive immediate eligibility to live and work anywhere in the United States, unrestricted to a specific employer like some visa categories require.

    No Per-Country Limits – There are no annual caps applied to the number of green cards awarded through EB-5 that other employment or family-based categories face, especially those from high applicant countries.

    Dependent Benefits – Once permanent residents, spouses can include children under 21 years old as derivatives on applications or sponsor them for green cards outside of other restrictive immigration categories.

    The married investor option within EB-5 invests value not only in one’s own future but their spouse’s security and quality of life as well through these ancillary advantages beyond sole financial investment return potential. A team approach offers more long-term benefits.

    Tax Considerations for Married EB-5 Participants

    As with any business investment, thoroughly researching tax implications is critical for married EB-5 participants to understand. Some key tax factors for consideration:

    Income Tax Filing Status – As a married couple, spouses must file federal tax returns either jointly or separately based on personal circumstances each year using Form 1040.

    Capital Gains Tax – Any profit from sale of the EB-5 investment asset held over one year at permanent residency attainment would qualify for the lower long-term capital gains tax rate rather than higher ordinary income tax rates.

    Self-Employment Tax – If operating an actively managed business instead of passive investment, self-employment taxes on net business income may apply to one or both spouses depending on level of involvement.

    Estate & Gift Tax – Annual gifts between spouses are unlimited and tax-free. But transfers at death involve federal estate tax considerations depending on combined total asset value.

    International Tax Reporting – Spouses holding significant offshore assets must continue complying with annual international information reporting on FATCA and other overseas holdings for tax purposes once U.S. residents.

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    Consulting experienced tax advisors knowledgeable about both EB-5 and married filing intricacies ensures lawful tax compliance while maximizing benefits from the U.S. investment. Proper planning is prudent when combining finances, residency status, and future tax implications at stake.

    Potential Issues and Divorce Contingencies

    Regrettably, not all marriages endure as planned when investing together under EB-5. Divorce is always a possibility that married participants must address prospectively to safeguard their immigration status and finances in the event relationship dissolution occurs:

    Conditional Residence Revocation – If divorce proceedings are initiated before the I-829 petition to remove conditions, it risks conditional status being withdrawn by U.S. Citizenship and Immigration Services (USCIS).

    Child Custody Disputes – International custody battles may ensue if one parent with permanent residency relocates overseas or tries taking children abroad against court orders.

    Asset Liquidation Disputes – Clear separation and division of EB-5 investment ownership percentages prenuptially helps avoid complications over dissolving jointly-held business property upon divorce.

    Alimony or Support Payments – Any spousal or child support obligations through divorce decree must consider one spouse’s immigration status may change, altering payment capacity over time.

    Having frank legal discussions before EB-5 investment and obtaining a thorough prenuptial agreement addressing all immigration and finance dissolution scenarios helps married couples make informed choices and stay prepared in case relationship troubles arise later. Upfront counseling reduces future conflict.

    Conclusion

    In summary, the EB-5 Immigrant Investor Program gives legally married couples an excellent opportunity to pursue the American Dream together through a single investment-based application.

    However, fully researching program requirements, thoroughly planning roles and tax compliance issues, documenting investment structuring, and addressing potential divorce contingencies intelligently is paramount for success.

    An attorney experienced in both immigration and family law provides invaluable guidance for married EB-5 participants to smoothly navigate this process while protecting mutual well-being over the long-term.

    For the right motivated couples, this investment immigration solution offers unparalleled benefits when adequately prepared and thoughtfully executed as a team.

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