Understanding the EB-5 Job Creation Requirement

Business man and employeesThe EB-5 Program was designed to promote the immigration of people who can help create jobs for U.S. workers through their investment of capital into the U.S. economy.

But the job creation requirements and the methodology for counting those jobs can be confusing and lead to a slew of questions from potential EB-5 investors.

The Requirement

One of the central requirements of the EB-5 program is that each investor must create or preserve at least ten full-time jobs for qualifying employees.  Qualifying employees are U.S. citizens, U.S. permanent residents, asylees, or refugees.  Non-immigrants, those with temporary work visas and the investor’s family members will not be considered qualified employees for the purpose of this requirement.

This doesn’t mean that as an investor you need to rush to hire ten employees as soon as you make your investment. Rather, your I-526 petition should be accompanied by a thorough business plan demonstrating that your investment created or can be expected to create ten full-time jobs for qualifying employees “within a reasonable time.”

The USCIS has generally interpreted “within a reasonable time” to mean by the time the investor files his or her I-829 petition, or within a reasonable time thereafter. This offers a degree of flexibility to account for the realities and uncertainties of starting a business.

Whether a lengthier timeframe for job creation will be reasonable is up to USCIS and they have considerable leeway under the law to request additional evidence regarding the need for extended time and make their determination.

Counting the Jobs

As a potential EB-5 investor, you should be aware of the important differences between the way jobs will be counted in Direct EB-5 Investments, Regional Center EB-5 investments, and even investments in troubled businesses.

  • Direct Investment

For direct investments in a new commercial enterprise the full-time positions must be direct employees of the new commercial enterprise.  That means that the new commercial enterprise must itself be the employer of the ten qualified employees who fill the new full-time positions. 

  • Regional Center Investment

Investors in a regional center are subject to all the same program requirements except that they may rely on indirect job creation. This means that jobs held outside of the new commercial enterprise, but created as a result of the new commercial enterprise may still be counted. For example, indirect jobs can include, jobs held by employees of equipment manufacturers and service providers of the new commercial enterprise. 

  • Troubled Business

The EB-5 Program understands that the U.S. economy benefits just as much when an immigrant investor helps preserve the existing jobs of a troubled business. Thus, if you are investing in a troubled business, the ten-job requirement can be satisfied by preservation of jobs, as well as creation, or a combination thereof.

Evidence of Job Creation

EB-5 investors can show that a new commercial enterprise will create or preserve the ten required full-time positions for qualifying employees by submitting evidence such as, documentation of relevant tax records, Form I-9, or other similar paperwork if the employees have already been hired. Otherwise, a comprehensive business plan showing that the project is such that at least ten full-time employees would be required for the operation of the enterprise.

At the Law Offices of Vaughan de Kirby, we know how important it is for you and your family to fully understand the requirements of the EB-5 investor visa program. Our San Francisco attorneys can advise you on business plans for job creation and job creation methodologies.  Call us today at 415-221-2345 for more information.

 

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