赴美指南 | 聚焦EB-5移民和美国税务规划 编辑:塞斯•科恩 林秋玟 2018-09-25




It is difficult to navigate a move to the United States and the complications surrounding applying for a visa, green card and/or citizenship, and the myriad other tasks are obstacles that can prove daunting but at the end of the process, the ability to emigrate to the US is the prize. However, it would be a mistake to overlook the adverse and potentially unwelcome tax issues of becoming a US person that must be understood and, where possible, planned around.





The EB-5 Program Immigrant Investor Program


Under the EB-5 program, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card and become a lawful permanent resident of the U.S. if they make the necessary investment in a commercial enterprise; and plan to create or preserve 10 permanent full-time jobs for qualified U.S. workers.




Once an EB-5 investor enters the U.S., he/she immediately become subject to: the U.S. tax on all worldwide income; U.S. estate and gift tax; and must comply with all U.S. compliance obligations, which, may include filing tax forms and making certain financial information disclosures. Thus, we can readily see the value of planning ahead.





Income Taxation in the United States


Unlike most all other countries where individuals are taxed based on where their income is earned and where their assets are located, U.S. citizens and lawful permanent residents are generally taxed on income that is earned both inside and outside of the country (also referred to as a system of “Worldwide Taxation”), at rates which currently can be as high as 37%.[1] Most often, U.S. citizenship is acquired by being born in the U.S., born to U.S. citizen parents, or by becoming naturalized. U.S. residents (e.g., green card holders) are individuals who are either lawful permanent residents of the U.S. or who spend a certain amount of time in the U.S. It bears repeating that both groups are taxable on their worldwide income.[2]





The following are some examples of a U.S. taxpayer’s yearly obligations:



File a Form 1040, to report their annual worldwide income;



File a Financial Crimes Enforcement Network (FinCEN) 114, Report of Foreign Bank and Financial Accounts (FBAR), if they hold a financial interest in or signature authority over foreign financial accounts the aggregate value of which exceed $10,000 at any time during the calendar year (it is a very complicated determination as to who must file an FBAR and a competent tax professional must be consulted);



File Form 8938, if the taxpayer has an interest in certain specified foreign financial assets the value of which exceed the applicable reporting threshold; and



File Form 5471 where the taxpayer is an officer, director, or shareholder in certain foreign corporations.


According to US law, failure to report income or make required disclosures, exposes a taxpayer to various degrees of civil and criminal penalties ranging from a warning to monetary penalties that can far exceed the value of all income and noncompliant assets, and, in extreme cases, to criminal penalties up to and including jail.




As an example, Mr. Lee immigrated to the U.S. from China via an EB-5 investor visa making him a lawful permanent resident of the U.S. While working and living in the U.S., he still has business interests in China from which he earns income. Additionally, he maintains several bank accounts in China with balances that are well over the $10,000 threshold. The income earned from Mr. Lee’s Chinese businesses is taxable in the U.S.; and the law will require the reporting of his ownership of the family business and his foreign bank accounts. Further, even if his business does not distribute any income to him, there are circumstances where the earnings of the businesses will be taxed to Mr. Lee.




Circumstances that are even more problematic may occur where Mr. Lee returns to live in China, and never returns to the US. In that case, he would still be obligated to pay tax on and report his foreign compensation and income earned to the US, unless he properly relinquishes his lawful permanent resident status. 





U.S. Estate and Gift Tax


EB-5 investors must be familiar with U.S. taxation of gratuitous transfers of assets before and after death. Generally, U.S. taxpayers and domiciliaries are subject to U.S. estate and gift tax on their world-wide assets at rates of up to 40 percent.[3]  Further, unlike US citizens, US green card holders and EB-5 investors are only entitled to a very limited lifetime estate tax exemption and no gift tax exemption. This limitation could expose taxpayers to immense estate taxes and deprive them of the opportunity to make tax-free post immigration gifts.


EB-5投资者应熟知美国对于个人在生前或死后无偿性转让财产征税的规定。一般来说,美国纳税人及居民负有对其全球范围内资产向美国缴纳遗产税及赠与税的义务(最高达40%)。[3] 并且不同于美国公民,美国绿卡持有人和EB-5投资者只享有非常有限的遗产税额度豁免,且不享有任何赠与税豁免。该限制可能会使纳税人负担巨额遗产税,并且在移民后失去进行免税赠与的机会。


Absent having a substantial presence in the U.S. prior to immigrating, a potential EB-5 investor is known as a “non-resident alien” ("NRA") for federal income tax purposes. NRAs are only taxed on income earned from sources within the U.S. Namely, income that is either “fixed, determinable, annual or periodical,” i.e., interest, dividends, annuities, royalties and rents,[4] certain gains on the sale of US situs property, or income earned through a regular trade or business.[5] The unique advantages of being treated as an NRA when calculating US income tax liability, provides an opportunity for planning.[6]




For planning purposes, prior to immigrating to the U.S., an individual will be considered a nonresident alien (NRA) unless they have spent substantial time in the U.S. unless domiciled in the U.S. NRAs are subject to U.S. estate and gift tax only on property[7] located within the U.S.[8]





Pre-Immigration Tax Planning


Given the worldwide reach of the US income and transfer taxes applicable to US citizens, residents and domiciliaries, the most effective tax planning must be effectuated prior to immigration to the U.S. and there are a number of techniques that can be utilized to do so.




For example, when an EB-5 investor moves to the US and becomes a resident, any sale of a capital asset thereafter is taxed based on the difference between the sale price and its cost basis. A capital asset owned by an EB-5 investor prior to a move to the U.S. may have a low cost basis which would result in a large capital gain tax upon sale, if the underlying asset successfully appreciates. Proper planning should be utilized prior to a move to the U.S. to reduce future capital gain taxes.




An NRA who anticipates a substantial future influx of income or has substantial built-up earnings & profits from his corporations could accelerate the recognition of such income and distribution, thereby avoiding the imposition of income tax in the US. Similarly, unrealized losses may also be deferred until after the NRA moves and becomes subject to U.S. taxation.




The careful review of an NRA’s corporate ownership prior to immigration could also help an NRA minimize their exposures to many intricate parts of the tax law dealing with US persons’ ownership of foreign corporations. Generally, these issues are better resolved prior to an NRA becoming a US tax resident.




From the estate and gift tax perspective, EB-5 investors may conduct pre-immigration estate planning to reduce future US estate tax exposures. There are a number of techniques that may be utilized to properly shelter assets and reduce tax liabilities, such as gifting non-US situs tangible personal property and gifting shares of stock in US corporations. In addition to making gifts, there are also significant transfer tax advantages for NRAs in making foreign property gifts to foreign trusts prior to immigrating to the US, as long as such trusts are structured properly.







An EB-5 investor program green card is an ideal vehicle for many foreign individuals to gain permanent residency in the US. As attractive as the quality of life, comfort, environment, and education are in the U.S., individuals who plan to immigrate to the U.S. must consider the obvious and hidden costs.  Taxes can be a very surprising part of those costs, especially when many are not well versed with the complicated US tax system.




The worldwide taxation system adopted by US tax law poses some unique and complicated income and estate tax issues for new immigrants. Most importantly, given the new immigrants’ strong business and financial ties to their originating countries, potential tax issues and liabilities related to foreign income and assets should be taken seriously especially when such issues could cost millions of dollars if success is great. By seeking the assistance of experienced professionals for proper tax planning both prior to and during the immigration process, taxes can be substantially mitigated for both the immigrating individuals and their future generations.





[1]Plus, applicable state and local taxes.



[2]However, in some cases, certain types of visa holders are exempted from being considered as residents, such as students visas (F, J, M, Q), or teachers and trainees visas (J, Q).

但是,在某些情况下,特定签证的持有人不会被视为居民,比如学生签证(F, J, M, Q)或者教师签证和培训人员签证(J, Q)。


[3]Plus, applicable state and local taxes.



[4]Which will be subject to a 30% withholding tax on the gross amount (a reduced treaty tax rate is provided to certain nations).



[5]Which will be taxed on a net basis like any other U.S. taxpayer



[6]Under certain infrequent circumstances, an EB-5 investor may seek to continue to have the NRA classification apply even following the receipt of a green card, pursuant to rules often found within an applicable tax treaty.



[7]E.g., real property, tangible personal property, stock in U.S. corporations, etc.



[8]In addition to being taxed for making gratuitous transfers either during life or after, US tax law also imposes annual information reporting requirements on any US person who receives gifts from offshore of more than $15,797 (2017) from foreign corporations or foreign partnerships or receives gifts of more than $100,000 from foreign individuals or estates. Such gifts must be reported on Form 3520 describing the property received and the FMV of the property received.

除了对纳税人生前和死后的赠与征税外,如果该纳税人从境外企业或合伙企业中获得超过15,797美金(2017年)的赠与,或者从境外个人或信托中获得超过100,000美金的赠与,美国税法同时要求被赠与的纳税人进行年度披露。该种赠与的获得将通过FORM 3520表格披露,其中包括对该财产的描述及其公允市价。








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