Yes, a direct EB-5 investor can make an investment in a new commercial enterprise (NCE) that involves non-EB-5 investors as long as the project creates at least 10 jobs per EB-5 investor. An EB-5 investor need not be a majority partner as long as they maintain active participation in the company. Of course, non-EB-5 investors do not need to create 10 jobs through their investments or comply with the other criteria set out by the EB-5 program; these guidelines are only applicable to foreign nationals who want to obtain EB-5 visas.
Regardless of whether there are non-EB-5 investors involved, foreign nationals planning an EB-5 investment should carefully evaluate potential projects to make sure that they will create the necessary number of jobs per investor. In fact, investing in a project that is well under construction and has an ample job cushion may effectively eliminate an investor’s immigration risk regarding job creation.
For example, a real estate development may plan on creating 900 jobs related to construction. Once the project is halfway through the construction period, approximately 450 jobs will have been created. The project is open to 15 EB-5 investors, so it needs to generate only 150 jobs to satisfy the employment generation criteria. If an investor subscribes to the project halfway through its completion, all the necessary jobs will already have been created—the investor is thus guaranteed to fulfill the job creation criteria.
It is also important to note that an investor’s level of involvement in a project largely depends on whether it is direct or sponsored by a regional center. Direct EB-5 investors are often expected to be involved in the NCE’s day-to-day operations; these investors typically have more control over how their EB-5 capital is used. Therefore, direct projects may be ideal for foreign nationals with management experience or who are looking to maximize their profits. On the other hand, regional center investors can choose to be less involved in business operations.