For how long must the 10 jobs be created by a direct investment to count? Is it the position that matters, or how long an individual works in that position? If I replace the person in this job with someone else, does it still count as a created job? What if I have to fire this person because they are not doing the work properly? What type of employment contracts must the 10 jobs be? Do they need to be working by the time I file for my EB-5 application?
Answers
Yuliya Veremiyenko-Campos
Immigration Attorneys DirectoryThe job creation analysis is focused on the positions created rather than people occupying those positions. As long as the permanent full-time position is created, it is acceptable for different individuals to occupy them over time.
Andres Echevarria
Immigration Attorneys DirectoryTo meet the job creation requirements for a direct EB-5 investment, the investor must create 10 full-time jobs within two years of obtaining Conditional Permanent Resident status, with the expectation that these jobs will last at least two years. It is the position that matters, not the individual occupying it, so if an employee is replaced, the job still counts as long as the position remains filled and meets the full-time requirement of at least 35 hours per week. If an employee is fired, the position must be filled by another qualifying employee to maintain compliance. There is no specific requirement for the type of employment contract, but the positions must be permanent rather than temporary or seasonal. The jobs do not need to be filled at the time of filing the EB-5
application, but the investor must provide a comprehensive business plan showing that the enterprise will create the required jobs within the specified timeframe.
An important difference between direct and regional center EB-5 is that indirect and induced jobs cannot be used to meet the job creation requirements for a direct EB-5 investment. Here, the investor must create 10 full-time direct jobs, which are positions that establish an employer-employee relationship between the new commercial enterprise and the persons it employs. Indirect and induced jobs, which are created as a result of the new commercial enterprise but do not involve direct
employment by the enterprise, are only applicable in the context of regional center investments.
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