Qualifying Employment Creation
“The EB-5 Requires that a certain number of qualifying employees be hired within 2 years or the EB-5 will be denied.”— Brian D. Lerner, EB-5 Immigration Lawyer
Employment Creation in the Commercial Enterprise
In addition to investing the required amount under the statute, the investment must result in the creation of full-time employment for at least 10 qualifying U.S. citizens or immigrant workers, other than the applicant and his or her immediate family, within the two year conditional residency period. The investor must think not only of the investment, but how he or she will get 10 qualified employees. Even troubled businesses will need employees to work there.
A Regional Center EB-5 does not require Employment Creation
Employment means employment in a position which requires 35 hours of service per week, regardless of who fills the position. Independent contractors are not employees for purposes of qualifying investments. Where an investment only supports existing positions but fails to create new full-time jobs, it does not satisfy the requirements under the statute unless the investment is in a troubled business. This is assumed in a Regional Center. Job creation is a very important part of the EB-5.
The investment is only one part of the EB-5. The employment part is the other important item to consider.
Documents which can be submitted to prove the creation of 10 full-time positions include USCIS Form I-9 (Employment Eligibility Verification), tax records of already hired employees, a copy of a comprehensive business plan which demonstrates where the 10 employees will be hired, and the approximate dates of hire within the required two year period.
Unlike many other investment visas, the I-829 must be filed near the end of the two years after receiving the conditional EB-5. The employment creation and employees hired must be shown at that time. Job creation is a very important part of the EB-5 investment visa. The immigrant investor needs to take this into account when moving forward on the EB-5.