Foreign nationals interested in the EB-5 Immigrant Investor Program must follow the regulations set out by United States Citizenship and Immigration Services (USCIS). One of the key requirements is that the investment should create jobs for qualified U.S. workers. In this way, the EB-5 investment program contributes to the U.S. economy and reduces unemployment.
While there are multiple criteria under inspection during the USCIS adjudication process, including compliance with the minimum investment thresholds, job creation is one of the key factors that determine whether a foreign national is eligible for an EB-5 visa.
Towards the end of their two-year conditional residency, EB-5 investors must file Form I-829, Petition by Investor to Remove Conditions on Permanent Resident Status. Form I-829 must present evidence to demonstrate compliance with USCIS regulations. This could include an analysis of the EB-5 investment project’s activities and the EB-5 business’s payroll records.
Since the employment criteria are a critical part of the EB-5 program, foreign nationals should choose projects that can create at least 10 jobs using their EB-5 investment funds. Investors should also understand the specifics of the EB-5 employment creation requirement.
Eligible Employees for EB-5 Projects
The USCIS Policy Manual outlines which workers are eligible for EB-5 projects. Qualifying employees must be one of the following:
- A U.S. citizen;
- A lawfully admitted permanent resident;
- Another immigrant lawfully authorized for employment.
This means that employment opportunities filled by U.S. citizens, permanent residents, refugees, or asylees can count towards the job creation criteria. These individuals are legally authorized to work in the United States.
However, foreign nationals who have nonimmigrant status cannot be considered employees of the EB-5 project. This includes holders of L, M, and O visas. Also, the EB-5 investor themselves and their family members are not qualified to be EB-5 employees.
EB-5 Employment Types
There are three types of employment in the EB-5 industry: direct, indirect, and induced. It is important for a prospective EB-5 investor to understand the differences between these job types.
Direct employees appear on the business’s payroll. They are hired and paid full-time by the EB-5 project. In order to be counted towards the USCIS requirement, a direct job position needs to be active for at least two years. Nevertheless, multiple employees can fill the job position during this two-year period. Job-sharing agreements are also permitted.
Indirect employment relates to job opportunities generated by the expenditures of the EB-5 project. For example, EB-5 projects benefit local businesses that supply goods and services.
Induced employment is another measure of the EB-5 project’s positive impact on the local economy. For example, when an EB-5 project’s employees spend their wages, this creates new jobs within the local community.
Direct EB-5 projects can count only direct employment towards their total job creation target. Indirect and induced employment is counted by EB-5 projects sponsored by regional centers.
Meeting the employment creation requirements is a key part of the EB-5 investment process. Before selecting an EB-5 project, interested foreign nationals should seek advice from an experienced immigration attorney. Identifying an EB-5 project with strong job creation potential is an important way to ensure that an EB5 investment complies with USCIS criteria and has low immigration risk.
