EB-5 Visas

The EB-5 investment of each investor must create (or preserve) at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.

There Are Two Types of Jobs That Qualify for EB-5 Investments.

Direct Jobs for Direct EB-5 Investments

Direct Jobs in Direct EB-5 Investments means actual identifiable jobs for qualified employees that are hired directly by the New Commercial Enterprise into which the EB-5 investor has directly invested his or her capital. These are full-time positions (at least 35 hours per week) held by Qualifying Employees, where the employee’s salary will be paid by the New Commercial Enterprise. Independent contractors are not qualified as “Direct Jobs” for Direct EB-5 Investments.

A Qualifying Employee means someone who is: a U.S. citizen; a U.S. lawful permanent resident; a U.S. conditional permanent resident; an asylee; a refugee, or a person residing in the United States under suspension of deportation.  Qualifying Employees do not include the foreign investor, or the investor’s spouse or adult sons or daughters.  Qualifying Employees also do not include any legal nonimmigrant workers, such as a skilled worker with H-1B visa status, or any immigrants who do not have lawful work authorization in the United States.

Note: Investors may only be credited with preserving jobs in a troubled business. A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20 percent of the troubled business’ net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

Direct And Indirect Jobs for Regional Center Investors

Only foreign investors investing in a New Commercial Enterprise sponsored by a USCIS-approved Regional Center are allowed to rely on direct and indirect job creation using reasonable statistical methodologies. If the New Commercial Enterprise is not sponsored by a Regional Center, the EB-5 investor is prohibited from counting direct or indirect jobs using statistical methodologies.

Reasonable statistical methodologies use statistical input / output models that rely on data regarding investment amounts, industry classifications, the geographic location of investments and other data to determine the total job creation impact from the capital investment project undertaken by a New Commercial Enterprise or its Job Creating Entity. In this type of job-creation, the New Commercial Enterprise does not hire employees directly.

For regional center-based petitions filed on or after March 15, 2022, up to 90 percent of full-time positions may be created indirectly, and at least 10% must be created directly – in both cases, as determined by reasonable statistical methodologies.