U.S. Taxes for EB-5 investors: The Basics

The tax liability of a foreign national immigrating to the United States depends on their tax status with the Internal Revenue Service (IRS). An immigrant’s tax status is based on their immigrant classification as a Lawful Permanent Resident (LPR), length of residence in the country, and the type of visa used to enter the United States. Generally, the IRS divides immigrants into two categories: Resident Alien and Non-Resident Alien.

The designation of “Non-Resident Aliens” allows the IRS to levy taxes on foreign nationals residing outside the U.S. with income inside U.S. territory, as well as some foreign nationals residing in the U.S. for a limited period of time. However, most Non-Residents who reside in the U.S. for an extended period of time will become “Resident Aliens” subject to taxation.

Resident Alien status is determined by two tests: (1) the “Green Card” test and (2) the “substantial presence” test. 

Regarding the first test, every LPR is considered a “Resident Alien” for tax purposes, regardless of how long they have spent in the United States. Once you receive LPR status as an EB-5 investor, you will become a Resident Alien upon your arrival in the United States subject to taxation. You will be liable for paying U.S. taxes on any income earned either in the United States or abroad. All forms of income and assets, including wages, interest, capital gains, dividends, and foreign bank accounts must be accounted for and filed in your annual tax return for the calendar year. Disclosing all income properly is extremely important to avoid penalties, comply with U.S. law, and ensure the immigration process remains on track.

The second test for determining Resident Alien status is the substantial presence test, which examines how long a foreign national has been physically present in the United States (regardless of their immigration status). This test is applicable to all non-immigrant status holders (e.g., on H, O, L, and F statuses).

Measuring Substantial Presence

Measuring substantial presence can be confusing, therefore we recommend using the IRS Substantial Presence Test Calculator to determine if you pass the test. Typically, immigrants become “substantially present” in the United States if they reside anywhere on U.S. territory (including Puerto Rico, Guam, the Northern Mariana Islands, and Virgin Islands) for over 31 days during the current calendar year, or over 183 days during three consecutive calendar years.

It should be noted that many B-1/B-2 status holders (i.e., those in the U.S. for tourism or business) are unlikely to be considered “substantially present” for tax purposes, even if they stay in the U.S. beyond 31 calendar days in a year. Nor will certain visiting nationals with ESTA-issued visa waivers under the Visa Waiver Program be considered substantially present. In practice, because one cannot lawfully earn wage income in the U.S. on these statuses, a foreign national on B-1/B-2 status temporarily in the United States need not count this time towards determining substantial presence. They may be taxed on investment income they receive as Non-Resident Aliens. Furthermore, foreign nationals on A, G, and NATO statuses are also unlikely to be taxable due to the diplomatic nature of their stay (even if present in the U.S. for more than 31 days and earning income in the United States).

For foreign nationals on other statuses, any day that you enter the U.S., for any amount of time, is considered a “day of presence” which counts towards substantial presence. There are various exceptions for what counts as a “day of presence”, such as a daily commute to work in the U.S. from Canada or Mexico, travel of less than 24 hours between non-U.S. territories, days accumulated during medical impairment which prevents travel, and more. These exceptions should be discussed with an accountant or tax professional before determining your tax status.

Resident Alien status requires that a foreign national file an annual tax return which details the total amount of income held and accrued throughout the course of the calendar year, starting from the date of their entry into the U.S. For EB-5 investors already present in the U.S. on a prior non-immigrant status, taxes will be paid to the IRS at the same rate and continue from the date of their last tax return, rather than the date at which they receive LPR status.

Investors in the EB-5 program may receive a Form K-1 from their investment issuer each year, which allows investors to prove earned income inside the U.S. and report it to the IRS. 

It should be noted that an immigrant may be considered a resident alien for income tax purposes, but not for estate tax purposes, which are treated differently. Please consult a tax professional if you, as a Non-Resident Alien, believe you may inherit assets from a U.S. citizen or Resident Alien.

We have covered a basic overview of income tax, gift tax, estate taxes, and property taxes of which EB-5 investors should be aware. There are many other forms of taxations such as corporate tax, rental tax, capital gains taxes, et. cetera, which are beyond the scope of this article. Contact a tax professional if you believe these may apply to you.

Income Tax

Generally, the IRS divides income into two distinct categories: FDAP and ECI. This allows the IRS to adjust tax liability based on the source, regularity, and type of income received by a Resident Alien.

Fixed, Determinable, Annual or Periodical (FDAP) Income

The first category is Fixed, Determinable, Annual or Periodical or FDAP income. This type of income normally includes any type of passive investment income. It includes most capital gains, interest gains, dividends, rental income, insurance premia, annuity payments, and any other type of income not connected to a U.S. trade or business. Any income flow which is considered FDAP is taxed at a flat rate, unless a U.S. Tax Treaty reduces the rate. No tax deductions are allowed against FDAP income. 

The sales of foreign capital assets are almost always excluded from FDAP taxation and withholding. They are generally excluded from U.S. tax altogether. However, Resident Aliens who qualify under the substantial presence test are required to pay a tax on all profits generated from selling an asset which qualifies for capital gains taxes. 

Effectively Connected Income (ECI)

Income can also be considered Effectively Connected (ECI) if it is derived from personal and professional engagement in a U.S. trade or business. This includes regular employment, manufacturing, management of retail stores or corporate offices, sale of products directly and indirectly in the U.S., and the export of merchandise outside the U.S. Additionally, some foreign-sourced income can also be effectively connected to a U.S. trade or business.

ECI will be taxed at a “graduated rate” after any deductions are applied, meaning that any Non-Resident Alien will be taxed at the same rate as a Resident Alien or U.S. Citizen. ECI designation is only applicable for the tax year in which the transaction took place and the goods/services were provided. For example, any ECI generated in 2022 would only be applicable for the 2022 tax year, rather than included as ECI in the 2023 tax year.

Capital gains derived from real estate sales are regarded as ECI, and are taxed on a net basis according to the Foreign Investment in Real Property Tax Act (FIRPTA).

Gift Tax

A gift of a tangible U.S-based asset may subject an individual to gift taxes. This means that any income generated from property, dividends from U.S. corporations, or any other form of income or assets gifted over a certain amount designated by the IRS every year are subject to the gift tax.

Resident Alien Gift Tax Liability

Resident Aliens must report gifts from a Non-Resident Alien which are valued higher than the IRS’s annual gift tax threshold. Additionally, they must also report the gifting of assets to other individuals so the IRS may track transfer of financial assets between individuals. Resident Aliens must report gifts from a Non-Resident Alien which are valued higher than $100,000 on Tax Form 3520.

Non-Resident Alien Gift Tax Liability

Non-Resident Aliens are not subject to taxes on any tangible gifts (property, cars, et. cetera.) held outside the U.S or any “intangible” gifts (shares in a U.S. corporation, interest in a business, et. cetera). Neither the person sending nor the person receiving a gift of this type would be liable to report it on their tax returns, unless the recipient was a U.S. citizen or Resident Alien.

Taxes on Gifts to Immediate Family

The Kiddie Tax is a form of gift tax levied on every gift valued over $2200 given to dependents under the age of 19 (or full-time student children under the age of 24). Any gifts given “downstream” to these dependents will be taxed at a lower rate according to the dependent’s income.

A Generation-Skipping Transfer Tax applies to individuals who pass on property via inheritance or gift to dependents who are at least 37.5 years younger than themselves. The purpose of this tax is to ensure wealthy individuals passing on large estates through trusts or gifts are still subject to estate taxes.

EB-5 status immigrants seeking to reduce their tax liability upon finding residence in the U.S. should utilize gift tax privileges given to Non-Resident Aliens prior to beginning their conditional LPR status. However, all gifts should be well documented in the case that they are necessary for filing tax returns later.

Estate Tax

In the context of U.S. tax law, an estate is composed of all assets belonging to an individual across the world, whether owned wholly or partly. One’s whole estate is not taxed annually. Instead, the estate tax is a one-time tax only levied at the individual’s time of death, earning it the nickname of “the death tax.” In essence, the estate tax covers all property and capital passed down from a deceased individual to their surviving family.

• Resident Aliens: Estate taxes are determined by the date which the immigrant announces their intent to remain in the U.S. This date is determined using immigrant petitions, frequency of travel to the U.S., family and social connections in the U.S., real estate assets in the U.S., as well as actual date of entry into the U.S. EB-5 investors are generally considered estate tax residents from the date of arrival in the U.S., if not earlier.
• Non-residents: All future immigrants who have not yet entered into the U.S. for LPR status are considered non-resident aliens and may not be subject to estate taxes.

The estate tax also differs for immigrants based on their country of residence, as tax treaties may qualify them for smaller estate taxes.

Property Tax

Any person who owns real property in the United States is likely subject to property tax, which is levied by state and local governments. Property taxes are used to fund local government activities, such as public schools, utilities, and municipal government. It is usually calculated as a percentage of the fair market value of the property.

Property taxes only apply to the owners of a property and do not normally apply to renters or lessors of a property.

As immigrants to the United States, EB-5 investors may consider buying a home or investing in U.S. real estate. Before doing so, it is important to understand property tax liability. Some localities impose higher property taxes than others, usually because they are desirable communities (e.g., due to safety, good public schools, distance from metropolitan centers, aesthetic landscaping and surroundings) and their housing demands/prices are high. While purchasing properties here may be lucrative, an investor should be forewarned that they may be required to pay high property taxes every year.

It should be noted that property taxes are separate from mortgage payments, the latter constituting payments to a bank to complete the purchase of a property over time. Property taxes are levied on the owner(s) who are normal resident(s) of the property (i.e., the mortgagee) regardless of their ownership stake at the time. A property owner who has completely paid off their mortgage and owns a 100% stake in their property will still be required to pay property taxes.

Immigrants investing in property should also beware of non-occupancy or “vacancy” taxes, which are designed to target vacant properties that are not being rented (due to affordable housing shortages in major U.S. cities). Such properties, if residential, are often subject to a higher tax rate than occupied properties.

You should consult a tax professional when purchasing a home or other real property in the United States for the first time, to understand tax implications.

Summary Table of Common Types of Taxes