United States Citizenship and Immigration Services (USCIS) has put in place several regulations governing EB-5 projects and investments. To participate in the EB-5 Immigrant Investor Program, qualifying foreign nationals must make an investment in a new commercial enterprise (NCE) or troubled business. In addition to using legally sourced funds that remain at risk and investing the minimum required amount, EB-5 investors must also create or preserve at least 10 full-time jobs for qualifying U.S. workers. This last requirement is one of the foundations of the EB-5 program. The job creation criteria ensure that all EB-5 investments are used to reduce unemployment in the United States.
Even though every EB-5 investment must result in the creation or preservation of 10 jobs, the way these jobs are calculated depends on whether the investment is made directly or through a regional center. Regional center EB-5 projects calculate their job creation based on the project’s overall economic impact. In other words, they can count direct, indirect, and induced jobs toward meeting the employment creation criteria. In contrast, direct EB-5 investors can only use the direct method of calculating jobs. These jobs must be created by the business receiving the investment. Directly employed workers must be on the project’s payroll and work full time.
In most cases, the 10 jobs resulting from a direct EB-5 investment must be created within 30 months after the investor’s Form I-526E is approved. The jobs must be held until the end of the investor’s two-year conditional permanent residence.
Foreign nationals planning a direct EB-5 investment should keep in mind that direct jobs are usually ongoing operational jobs associated with the project. Construction jobs may also be counted if the construction goes on for at least two years. Further, an EB-5 project’s job creation report is typically calculated by an economist and submitted with Form I-526E.
