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United States residents who are not accredited investors are often not allowed to participate in Initial Coin Offerings (ICOs) which are not public offerings for the purpose of U.S. Securities laws.

Are there such restriction for F-1 students who have been in the US for less than 5 years, who are non-resident aliens for tax purposes and are actually not citizens of the US but are citizens of another country?

  • Can you provide a reference to support your first sentence? I am not aware of any means for a person to "register" as an investor in the U.S. – feetwet Jan 25 '18 at 18:32
  • Citing sec.gov/oiea/investor-alerts-and-bulletins/ib_coinofferings : "The federal securities laws require securities offerings to be registered with the SEC unless an exemption from registration applies. Many registration exemptions require that investors are accredited investors" An example to an ICO that ACKs this fact is medicalchain.com/en/token-sale , where you see that they "are unable to accept US citizens, residents or taxpayers", some others only state "citizens and residents" while some only say "citizens". – nonKreon Jan 25 '18 at 20:05
  • Rules for a poker table: At every poker table, there is a mug. If you don't know who the mug is, you are the mug. Same applies to cryptocurrency. Except where poker is a zero sum game, cryptocurrency is a losing game. Money paid out is less than money paid in because of various costs. – gnasher729 Jan 25 '18 at 21:25
  • If I can't get into ICOs, that truly means that all F-1 students are the mugs, and for sure that includes me. If I don't get a tax refund like a citizen, I don't pay the in-state tuition as a resident does and I can't get a job easily like they do, but still I have to abide the laws that are imposed on them, this makes it an all-lose game, I only abide the rules but don't get the rewards. This is getting off topic... – nonKreon Jan 25 '18 at 21:43
  • I have edited the first sentence of the question in light of the comment by nonKreon to make it more accurate as a statement of the law and to use the proper terminology. – ohwilleke Jan 25 '18 at 22:22
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Are there such restriction for F-1 students who have been in the US for less than 5 years, who are non-resident aliens for tax purposes and are actually not citizens of the US but are citizens of another country?

Short Answer

For the most part, citizenship and immigration status are legally irrelevant to your eligibility to participate in an ICO (there are isolated exceptions related to international trade sanctions, and there are certain "sensitive" industries that usually wouldn't apply to an ICO).

This said, no issuer of coins is required to make the offering available to everyone who is not prohibited by the applicable laws from participating. For example, if someone wants to make an ICO available to anyone but Canadians, that is their prerogative.

But, in practice, most private ICOs require investors to be accredited investors, and few students on F-1 visas have the wealth, income or professional qualifications necessary to be accredited investors.

Long Answer

In an ICO made in the United States, the issuer (i.e. the person creating the coins) and the underwriter (i.e. the professionals retained to handle the ICO for the issuer, which will sometimes be the same person as the issuer) are electing to treat the coins as "securities" for the purposes of U.S. law which means that they can be issued only as a "public offering" upon registration with the SEC under the '33 Act or the '34 Act, or under an exception to those acts. While the statutes enumerate exceptions to the Acts, almost everyone sticks to trying to comply with one of the safe harbor exceptions created by SEC Regulation D.

This protects the issuer and underwriter from legal liability for making an unregistered offering of a security that does not fall within an exception to the registration requirement, even though it is not unambiguously clear that cyptocurrency coins are "securities." They do this because the consequence for being wrong on this legal question of first impression are very severe and could lead to civil liability for all losses that coin holders experience, large civil penalties that cannot be discharged in bankruptcy, and criminal convictions.

Eligibility to participate in a private offering made pursuant to the Regulation D exceptions to U.S. Securities laws (mostly the '33 Act and '34 Act) governing public offerings of securities that often require someone to be an "accredited investor" does not depend upon the immigration status or citizenship of the investor.

A private ICO would ordinarily be made under a Regulation D exception. There are two Regulation D exceptions (one for offerings of less than $1,000,000 in the aggregate by an issuer, and another for intrastate offerings) which do not require you to be an accredited investor and there are other exceptions with allow a small number of non-accredited investors to participate if they are provided a professional advisor to counsel them in evaluating the offer.

The most popular Regulation D exceptions for private offerings, however, are limited to accredited investors, which are available without regard to citizenship.

A non-citizen could probably not participate in an offering made pursuant to the intrastate exemption, but this exception is quite unpopular for issuers and underwriters because very few offerings qualify under it and the boundaries for qualification are not well defined. I could imagine an ICO being made under this exception but I am not aware of any that actually are be made in that manner.

Generally, to be an accredited investor you must be a certain kind of business entity (e.g. a bank), or a member of a certain set of professions (e.g. lawyers and brokers), or have a certain net worth and/or income.

To be an accredited investor, a person must demonstrate an annual income of $200,000, or $300,000 for joint income, for the last two years with expectation of earning the same or higher income. An individual must have earned income above the thresholds either alone or with a spouse over the last three years. The income test cannot be satisfied by showing one year of an individual's income and the next two years of joint income with a spouse. The exception to this rule is when a person is married within the period of conducting a test. A person is also considered an accredited investor if he has a net worth exceeding $1 million, either individually or jointly with his spouse. The SEC also considers a person to be an accredited investor if he is a general partner, executive officer, director or a related combination thereof for the issuer of unregistered securities.

An entity is an accredited investor if it is a private business development company or an organization with assets exceeding $5 million. An organization cannot be formed with a sole purpose of purchasing specific securities. Also, if an entity consists of equity owners who are accredited investors, the entity itself is an accredited investor.

In 2016, the U.S. Congress modified the definition of an accredited investor to include registered brokers and investment advisors. Also, if a person can demonstrate sufficient education or job experience showing his professional knowledge of unregistered securities, he is also considered an accredited investor.

In contrast, in the case of a public offering, which must be registered with the SEC under the '33 Act or '34 Act, any adult of any nationality (except as noted below) can participate without being an accredited investor.

Still, in general, a U.S. securities law perspective, an investor from the U.K. or France or South Africa is the same as a U.S. citizen, even though the tax treatment of the investment for a non-citizen is very different from the tax treatment of the investment for a U.S. citizen or permanent resident.

The primary exception to this general rule is that there are some people in some countries who are prohibited from investing in U.S. securities as a consequence of international trade sanctions. These would include members of the families of certain government officials in Russia, Syria and Venezuela, for example.

Usually, a private offering packet provided to potential investors (such as one I wrote a couple of months ago involving international investors as well as U.S. investors) will include a separate form in which potential investors certify to the issuer and underwriter of the offering that they are not prohibited from investing under these laws which are enumerated in the form.

Non-citizens who are not resident aliens (i.e. who are not green card holders), are also usually required to make a disclosure related to income tax compliance that is different than the Form W-9 that has to be provided by U.S. citizens and green card holders.

There are also certain industries (e.g. equity investments in Colorado legal marijuana dispensaries, or farms in some Great Plains states) in which non-resident non-citizens are simply prohibited from making investments entirely although there are no ICOs of which I am aware that would fit in that category.

  • Although I did not like the result pragmatically, I appreciate your time in putting such an extensive answer together... so it's an all lose game for international students in that case, all obey and no benefit... – nonKreon Jan 25 '18 at 23:39
  • Yes. That is true. – ohwilleke Jan 25 '18 at 23:42

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