Green Card holders face risk of non-renewal or revocation of their Green Card (permanent residence status) if they failed to file a Report of Foreign Bank Account (FBAR). This may come has headline news to some permanent residents and their advisors even though permanent residents are required to comply with income tax reporting as a condition of their immigration status. An FBAR is not an income tax form, it is a Bank Secrecy Act form and there is no direct mention on the USCIS/IRS link about FBAR filing obligations the failure to file an FBAR may be particularly troublesome to applicants under the EB-5 immigrant visa process. There is a section on Schedule B of Form 1040, that asks if the taxpayer has a foreign bank account, but there is no reference on the Form 1040 to the FBAR (Form TD 90-22.1) Under the EB-5 process an applicant is granted “conditional permanent residence” for a two year period. At the end of the two year period assuming that the conditions of of the visa have been met the applicant can become a permanent resident. The conditions of the visa relate to minimum business investment and job creation. For EB-5 visa holders, the failure to file FBAR’s could be asserted as a failure to comply with U.S. law and be a reason for denial of the application to remove the two year condition to become a permanent resident. Immigration and tax professionals advising EB-5 visa applicants as well as all other Green Card applicants need to advise their clients in writing of the obligation to file FBAR’s and the potential consequences of not filing. In addition to the risks to immigration status there are civil and criminal penalties for failure to file an FBAR some of which are set forth below.

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