EB-5 JOB CREATION REQUIREMENTS
USCIS requires an EB-5 investor to invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying employees within two years. Several issues relevant to job creation requirements when investing in EB-5 are collected from USCIS that are really helpful to potential investors.
For a new commercial enterprise not located within a regional center: the full-time positions must be created directly by the new commercial enterprise to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
For a new commercial enterprise located within a regional center: the full-time positions can be created either directly or indirectly by the new commercial enterprise.
• Direct jobs are those jobs that establish an employer-employee relationship between the new commercial enterprise and the persons it employs.
• Indirect jobs are those jobs held outside of the new commercial enterprise but that are created as a result of the new commercial enterprise.
In other words, the number of employees who do not work directly at the project but have indirect employment through the construction and operation of the project. The project needs suppliers during its construction and operation. These suppliers will create jobs for their employees that are called indirect jobs.
In the case of a troubled business, the EB-5 investor may rely on job maintenance. The investor must show that the number of existing employees is being, or will be, maintained at no less than the pre-investment level for a period of at least 2 years.
Terms of Job requirements
A qualifying employee is a U.S. citizen, lawful permanent resident or other immigrant authorized to work in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any non-immigrant status or who is not authorized to work in the United States.
Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. Non-continuous, temporary and seasonal employments are not considered as full-time employment.
A troubled business is a business that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
Owning a clear understanding of job creation requirements when investing in EB-5 will help investors comply with USCIS regulations, and avoid ineligible faults and risks. RSCC will keep you accompany to advise the most effective and safest solution when joining the EB-5 program.