EB-5 investors, immigration attorneys, and other professionals involved in the EB-5 investment industry all agree that the job creation criteria set out by United States Citizenship and Immigration Services (USCIS) is key to determining a foreign national’s eligibility for an EB-5 visa. One of the main reasons Congress created the EB-5 Immigrant Investor Program in 1990 was to reduce unemployment in the United States; besides meeting the minimum investment threshold, EB-5 investors must also create at least 10 full-time jobs for U.S. workers.
USCIS carefully evaluates Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status, to determine whether an EB-5 investment has complied with its regulations, including the job creation requirement. EB-5 investors who file Form I-829 must include evidence such as an econometric analysis of the EB-5 project’s activities and the new commercial enterprise’s (NCE’s) payroll records.
To increase their chances of receiving approval for Form I-829, EB-5 investors must choose their projects carefully. The most reliable projects from an immigration perspective aim to create more than 10 jobs per EB-5 investor, thus accounting for any unforeseen obstacles or capital shortfalls.
It is crucial for EB-5 investors to understand the rules governing job creation, including specifics regarding employee eligibility and the differences between direct, induced, and indirect employment.
The USCIS Policy Manual says the following about what kinds of workers count toward fulfilling the EB-5 job creation requirement:
“For the purpose of the job creation requirement, the employee must be a qualifying employee. A qualifying employee is a U.S. citizen, a lawfully admitted permanent resident, or other immigrant lawfully authorized for employment in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a noncitizen remaining in the United States under suspension of deportation.”
In light of these guidelines, an EB-5 project’s employees that appear on the NCE’s payroll must be legally authorized to work in the United States. EB-5 project developers can hire employees who are U.S. permanent residents, citizens, legal asylees, and refugees. However, workers holding L, M, or O visas will not count toward fulfilling the job creation requirement. Moreover, an EB-5 investor and their family members cannot count as EB-5 employees.
Direct, Induced, and Indirect Employment
Direct employment is made up of workers who appear on the NCE’s payroll. These employees are hired and paid by the EB-5 project. In addition, direct positions must last for a minimum of two years and be full time; USCIS allows several different employees to fill an EB-5 job position during the two-year period, and job-sharing agreements can be used. Direct EB-5 projects can count only this type of employment.
In contrast, indirect and induced employment is not comprised of workers who are hired by the NCE. Rather, indirect and induced jobs are created by the EB-5 project’s positive economic impact on the community. For instance, an EB5 investment project will likely use local companies to obtain goods and services, and the project’s employees will spend their wages in the locality. Regional center-sponsored projects can count direct, indirect, and induced jobs.
Foreign nationals interested in making an EB-5 investment and pursuing permanent resident status should retain an experienced immigration attorney, who can help them find the safest EB-5 projects with adequate job creation criteria.