Can an EB-5 investor hire a foreign worker?

While it is possible for an EB-5 business to sponsor a foreign worker, doing so is complex and inadvisable. The worker would have to meet strict visa requirements, visa numbers are limited, and the position will not count toward the EB-5 job creation requirements if the person holds a nonimmigrant visa.

The process for a business to sponsor a foreign worker is complex. Although it is understandable that EB-5 investors who come from around the world may want to partner with someone they know well, and even though there are several visa pathways for the EB-5 business to sponsor the foreign worker, there are strict requirements for the worker’s qualifications in addition to limited visa availability.

For instance, demand for the H1-B program has historically far exceeded visa supply. Due to the limitations of the H-1B program, many foreign workers looking to reside permanently in the United States choose to pursue the EB-5 investment program.

EB-5 businesses are strongly discouraged from sponsoring a foreign worker. Even if a business manages to sponsor a foreign worker successfully, the worker may not be considered a qualified U.S. worker by United States Citizenship and Immigration Services (USCIS), the government body that adjudicates EB-5 petitions. The EB-5 investment program comes with a long list of requirements, and, among other things, each EB-5 investment must create at least 10 full-time jobs for qualified U.S. workers.

USCIS defines a qualifying employee as “a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation.” The definition specifically excludes the investor and their family members, anyone holding nonimmigrant status (such as an H-1B nonimmigrant), and anyone who has not secured authorization to work in the United States. In terms of meeting the job creation requirements of the EB-5 program, the fear would be that the position filled by the foreign worker would not be counted for job creation purposes.

Anyone considering such a plan should consult an experienced EB-5 immigration attorney before proceeding.