EB-5 AND JOB CREATION
Job creation is the heart and soul of the EB-5 Visa program. Even if all other aspects of a Regional Center investment for the EB-5 Visa are met, the investor and his or her family will not receive permanent Green Cards if the EB-5 job creation requirements are not fulfilled.
EB-5 Job Creation Requirement
The U.S. Citizens and Immigration Services (USCIS), which oversees the EB-5 Visa program, requires the creation of at least 10 fulltime, permanent jobs before the investor may receive permanent residency status via a Green Card. While the number of jobs created is non-negotiable, the USCIS allows some leeway in how it identifies a new position.
Two Year Window
There is no need to create jobs instantly via an EB-5 investment. The USCIS permits a “reasonable” period of time for such employment creation, but not more than two years.
The I-526 form, Immigrant Petition by Alien Entrepreneur, should include a business plan. While this business plan has various components, it must include a description of the staffing requirements of this new commercial enterprise. This involves listing not only all job descriptions but also a timetable on when hiring will commence. This business plan requires to be comprehensive, and the more details included, the more likely the USCIS will accept the investor’s plan to create the necessary jobs.
Direct, Indirect or Induced Jobs
Investing through an EB-5 Regional Center allows the investor to count jobs directly related to the development in the 10 fulltime jobs quota, as well as the jobs considered indirect or “induced jobs” toward the EB-5 job creation requirements.
The USCIS refers to direct jobs as “actual identifiable jobs” located within the commercial enterprise in which the EB-5 investor has invested their funds. The commercial enterprise is the employer of these workers.
When determining job creation eligibility, the USCIS does permit job-sharing to attain a full-time position. When a job is shared, the qualifying employees divide the hours of one fulltime position among themselves. That means the number of hours usually worked by a fulltime employee must equal the number of hours each person puts in for the job split. For example, two people working 17.5 hours per week would qualify as one fulltime position. However, there is a caveat. Do not try to combine part-time jobs, even if the hours worked equal a fulltime job, to meet the EB-5 job creation requirement.
Indirect jobs are those created collaterally or resulting from the EB-5 investor’s capital investment in the commercial enterprise affiliated with a Regional Center. In other words, these jobs are not part of the commercial enterprise but exist because of it. As an example, the USCIS cites a construction project in which indirect job creation is based on expenses relating to building materials from various suppliers, such as lumber from one company and concrete from another. Indirect job creation may include service providers and even equipment manufacturers.
How are these indirect job numbers calculated? The EB-5 investor must submit a business plan to the USCIS, which must include a detailed economic analysis. The USCIS must approve this business plan during the designation of the participating Regional Center. As per the USCIS, because accepted job creation modeling practices do not distinguish between fulltime or part-time jobs, the agency uses “reasonable” economic methodologies for deciding whether such indirect jobs were created.
Induced jobs are those derived from consumer spending by those construction workers or staff.
It is also critical to understand what exactly the USCIS means by fulltime employee when it comes to meeting EB-5 job creation requirements. First, employees are those individuals providing labor or services; they are compensated for this labor or service by the employer. If an employee works at least 35 hours per week, he or she is considered a fulltime employee. Independent contract workers, no matter how many hours put in weekly, do not count as employees.
Not every employee will necessarily qualify for EB-5 job creation purposes. According to the USCIS, qualifying employees are either U.S. citizens, lawful permanent residents, refugees, or asylees.
Jobs filled by members of the investor’s family do not qualify, nor do jobs created for non-immigrant workers. The latter are those holding temporary worker visas, such as an E, H, or L visas. A person who does not have the authorization to work in the U.S. cannot qualify as an employee.
Proof of EB-5 Job Creation
The USCIS requires the EB-5 investor to prove that he or she has met the EB-5 job creation requirements by submitting certain documentation. This paperwork might include Form I-9, Employment Eligibility Verification, for each employee. The USCIS will also accept tax records and similar forms for employee verification.
Employees and the I-829
The filing of the I-829 form, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status, is the final stage of the EB-5 Visa process. If approved by the USCIS, the investor, spouse and unmarried children under age 21 can all receive permanent Green Cards.
All of the 10 fulltime, permanent jobs created must be maintained until the filing of the I-829, which removes these conditions.
However, at the I-829 stage, the USCIS may ask for additional evidence of fulltime, permanent, direct job verification. The petitioner may have to submit the relevant W-2 forms or other evidence as requested by the USCIS.
How LS NYRC Can Help
As one of the largest privately-held real estate companies in the country, LS NYRC has more than $6 billion in assets under management and development. We can help you receive an EB-5 Visa and permanent resident status for yourself, your spouse, and minor, unmarried children, and help guide through the entire EB-5 Visa process, including job creation requirements. If you would like more information about the EB-5 Visa and how LS NYRC can help, please fill out our contact form.