Generally, any job position in any industry can be counted toward job creation if the position is not part-time (less than 35 hours per week), temporary, or seasonal. EB-5 project developers also have the option of using a job-sharing agreement and dividing a full-time job among several part-time workers. Of course, individual part-time jobs cannot be counted as one full-time position. All EB-5 jobs must last for at least two years but can be filled by different workers; the important thing is for the position to be continuous.
To satisfy the EB-5 program’s criteria, each job must be filled by a qualified employee: a U.S. citizen, permanent resident, refugee, or asylee. Jobs cannot be filled by nonimmigrants with work authorization or by undocumented workers. The United States Citizenship and Immigration Services (USCIS) Policy Manual states: “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.”
For direct investments, only jobs created directly by the new commercial enterprise (NCE) may be counted; indirect and induced jobs do not qualify. Regional center investors, however, can count induced and indirect job creation. These types of jobs are a result of the spending made by the EB-5 project and its workers in the community. This spending will likely involve purchasing goods or services from local businesses; in this way, EB-5 projects strengthen the local economy and indirectly create jobs.
Since regional center-sponsored projects can count jobs that are not a direct result of their hiring, they usually find it easier to fulfill the EB-5 job creation criteria. Therefore, most foreign nationals gravitate toward regional center projects. EB-5 projects that are well into construction and have already fulfilled the job creation criteria for their investors are especially safe options.
