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Can a direct EB-5 investor count contract employees toward job creation?

No; direct EB-5 projects can count only jobs created by the new commercial enterprise (NCE) itself toward fulfilling the EB-5 program’s job creation requirement. In contrast, regional center-sponsored projects can include indirect jobs, such as contract labor, in their job creation calculations.

Regardless of the project type, United States Citizenship and Immigration Services (USCIS) requires every EB-5 investor to create a minimum of 10 jobs. All EB-5 projects must hire workers that are legally authorized for employment under U.S. law. Even though each position must be full time, EB-5 projects can implement job-sharing agreements and use several part-time employees to fill a full-time position. Additionally, every EB-5 job must last for at least two years; however, USCIS allows EB-5 projects to use several different workers to fill a position during this 24-month period.

For direct EB-5 projects, all employees must work directly for the NCE and appear on its payroll. As a result, the EB-5 program would not count contract labor toward fulfilling a direct investor’s job creation requirement. It is typically much harder to create 10 jobs per investor under the stricter regulations governing direct EB-5 projects; most foreign nationals who make an EB-5 investment choose regional center-sponsored projects due to their increased flexibility regarding employment creation calculation. As mentioned above, regional center projects can count indirect jobs toward fulfilling the requirement of 10 jobs per investor.

The EB-5 program considers all jobs that are not directly created by the NCE as indirect. For example, suppose that a foreign national invests in a regional center-sponsored hotel development. Dozens of employees, including construction workers and hotel staff, are working on the project site. However, all of these employees are contract workers who are not on the NCE’s payroll; as a result, these jobs are considered as indirect. In fact, all the jobs created by regional center projects are considered indirect because the employees appear on the job-creating entity’s (JCE’s) payroll and not on the NCE’s.