How long must job positions exist to be considered “permanent” and count toward EB-5 employment creation?

As the first petition EB-5 investors file, Form I-526, Immigrant Petition by Alien Entrepreneur, essentially serves as the EB-5 application. United States Citizenship and Immigration Services (USCIS) evaluates Form I-526 based on certain criteria, one of those being the EB-5 job creation requirement. All successful EB-5 investments must lead to the creation of at least 10 full-time, permanent jobs per investor. If the required jobs are not created at the time of filing Form I-526, investors must demonstrate their future creation within the next two years through a strong business plan.

Within the context of the EB-5 program, the requirement for created jobs to be “permanent” does not mean that a position must exist indefinitely. Rather, a permanent job is one that is not temporary or seasonal. Generally speaking, for a job to be counted toward employment creation, it must exist at the time the I-829 petition is filed.

It is important to note that sometimes the EB-5 job creation requirement is not satisfied upon filing Form I-829. In such cases, USCIS grants some flexibility. If the investor can demonstrate that the necessary jobs are “in the process of being created”, their petition will likely see approval. Moreover, the jobs must be expected to exist within a “reasonable period” after filing Form I-829. As an example, let’s consider a business that only has nine employees at the time of filing. If the investor can demonstrate that at least one more job position will be needed and that recruitment is underway, the position will be considered “in the process of being created”.

In certain circumstances, jobs that can count towards the job creation requirement will exist before the EB-5 applicant invests in the business. This is done with “troubled businesses”, through which an investor does not necessarily have to create new jobs. Instead, one can preserve existing positions to satisfy program requirements.