The underlying purpose of the EB-5 Immigrant Investor Program is to encourage job creation for U.S. workers. Naturally, all EB5 investments must create at least 10 full-time, permanent jobs per investor regardless of investment type. Much of the job creation criteria is clear and concise. However, United States Citizenship and Immigration Services (USCIS) offers some flexibility regarding when the jobs must be created.
At the start of the EB-5 investment process, applicants compile and submit their I-526 petitions. Arguably the most important part of this petition package is the business plan, which demonstrates the EB5 project’s compliance with program regulations. If the required jobs have not already been created at the time of filing Form I-526, their future creation must be exhibited in the business plan. This encompasses the projected job creation and information regarding what jobs will be created and when. For regional center investments, an economic analysis is also included to calculate indirect and induced job creation.
Once an investor’s I-526 petition is approved, they are granted a two-year period of conditional residence. At the end of this period, the investor will file Form I-829, which serves to prove that the investor has satisfied all EB5 program requirements. Actual employment creation must be demonstrated at this point.
Sometimes the EB5 job creation requirement is not met at the time of filing Form I-829. In such cases, USCIS grants some flexibility to the EB5 applicant. If the investor can prove that the necessary jobs are “in the process of being created”, their petition will likely be approved. For example, consider a business that only has nine employees at the time of filing Form I-829. If the investor can demonstrate at least one more job position is necessary for business operations and recruitment is underway, the position will be considered “in the process of being created”. However, such jobs must be expected to exist within a “reasonable period” after filing Form I-829.