今天，EB5Sir准备了两篇文章。本篇是GT律所Matthew Galati律师的文章，来正式解释，如果通过股东借款作为投资款的话，应该怎样去准备资金来源文件，由业内朋友Adela义务翻译，特此感谢。今天发的还有另外一篇文章，是AAEB5的Bonnie Cao律师的文章，解释了为何所述案例的两个投资者的I-526申请会被USCIS拒批。这两篇文章，朋友们可以参考，前天的案件介绍文章，一并结合阅读。
当前，许多投资者们 – 特别是中国投资者们 – 更喜欢用从贷款中获得的现金，作为EB-5投资款使用。USCIS（采取的立场是我们认为没有相应法规支持的）要求此类贷款必须用个人资产进行抵押，该个人资产要至少比贷款本身多。
尽管用房产作为抵押来获取银行贷款的情况最为常见，但许多企业主会用股东权益抵押来从自己公司借款 ，而不是通过利润分配。 USCIS背离之前的审案实践，使得这类的案子受到影响。
作为对RFE的回应，我们争辩了USCIS误用法规， 及没被移民局完全解读的贷款合同。特别是，申请人的财报中证明了其在公司拥有的所有者权益共计9,832,916人民币。申请人公司占股40% （即 3,933,166人民币）已经足够抵押340万人民币的贷款。
我们进行了更进一步的申辩，虽然贷款能通过未来的利润分配进行偿还，但是，根据Matter of Izummi（EB5Sir注：移民局先前判例）和2013年5月30日移民局出台的审案政策备忘录条款，偿还的来源和资金的来源是无关的。
正如前面所解释的，USICS所认可的公式模型为：（占股比例）x（所有者权益总计）= 抵押品价值。 假设一个申请者拥有该公司50%的股份，那么所有者权益总计需至少达到700万人民币时，才能支持350万人民币的借款。如果所有者权益少于贷款价值，USCIS有可能会认为这是一笔无抵押的贷款从而拒绝申请。
The Shareholder Loan Source of Funds is Alive and Well
By Matthew Galati on June 25th, 2015
Following USCIS’ recent stakeholder calls and the guidance issued on April 22 which signaled a departure from generally accepted successful strategies for source of funds, the industry has been abuzz with rumors as to what USCIS will and will not accept as the basis of a cash investment. One specific area of confusion involves Shareholder Loan cases. But to appropriate a famous quote by Mark Twain, rumors of the death of the Shareholder Loan case have been greatly exaggerated.
By way of background, many investors – especially those in China – prefer to make an EB-5 investment by investing cash derived from a loan. USCIS (taking a position that we would argue is not supported by the regulations) requires such loans to be collateralized with a personal asset valued at least as much as the loan itself. Although loans from banks collateralized with real property are the most common, many entrepreneurs seek loans from companies that they own, collateralizing their ownership equity as opposed to taking a profit distribution. The above-linked departure from historical USCIS practice affects these kinds of cases as well.
Very recently at Greenberg Traurig we have received an I-526 approval following an RFE relating to a shareholder loan case. In this case, the Petitioner received a RMB 3.4 million loan from his company in which he held a 40 percent ownership. The collateral of the loan was his ownership in the company, and repayment of the loan was to be made from his share of company profits. USCIS issued an RFE questioning whether the loan was fully collateralized by the Petitioner’s assets specifically by questioning the method of repayment.
In response to the RFE, we argued that USCIS misapplied the regulations and did not fully read the loan contract. Specifically, the Petition included financial statements evidencing that the company held total owner’s equity of RMB 9,832,916. We argued that the Petitioner’s 40 percent of this interest – RMB 3,933,166 – was more than sufficient to collateralize the RMB 3,400,000 loan. Further we argued that even though the loan could be repaid through future profit distributions, the source of the repayment is not relevant to the source of funds under Matter of Izummi, the regulations, or the May 30, 2013 Memorandum.
The case was approved less than two weeks after response.
So what are the key takeaways for Shareholder Loan cases? Given USCIS’ ambiguous new approaches to cash investments derived from loans, we strongly recommend the following:
1. The loan needs to be secured by the investor (or at least the giftor’s) shares. We have received reports that loans secured by the future profits are being denied because the investor/giftor does not yet own the profits as they have not been distributed. Thus while a loan can be repaid from profits, the actual collateral in a shareholder loan case must be the shares themselves.
2. The value of the pledged ownership interest needs to be greater than the value of the loan. As explained above, USCIS is accepting the formula of (Percentage Ownership) x (Total Owners’ Equity) = Value of Collateral. Thus if a petitioner owns 50 percent of the company, the total Owners’ Equity must be at least RMB 7 million to support a RMB 3.5 million loan. If the Owners’ Equity is less, USCIS is likely to consider the loan to be unsecured and deny the case.
3. The Shareholder Loan contract needs to explicitly state the terms of the loan. USCIS is unlikely to consider the contract to be valid without stating the loan amount, interest rate, usage of the loan (see below), and collateral. Further a Shareholders’ Resolution will also bolster the credibility and lawfulness of the loan.
4. In line with the guidance issued on April 22, the usage of the loan must comply with an EB-5. USCIS will question a case if the loan reflects a specific purpose or restrictions incompatible with EB-5. Ideally, the loan documents will explicitly reference the investor’s intended immigration through EB-5 investment and not include any limitations on investing in equities.