How are employees selected for jobs created by EB-5 investment?

The employees are selected the same way ANY employees are selected for a job. The only requirement is that the EB-5 employees are authorized to work in the United States. The regulations do not regulate where or how close an employee may live to the job.

The jobs created must be direct jobs as a result of the project (or indirect jobs in certain circumstances). To simply hire "friends" to fill positions sounds like an attempt to circumvent the requirements of the EB-5 program - to secure foreign investments and to create long-term employment.

For a regional center EB-5 project, most of the jobs are likely to be indirect jobs, not direct jobs. Therefore, the project itself may be hiring only a few direct workers or even no workers in some situations. In the case of a direct EB-5 project or a regional center that will hire some direct employees, the job application process is like any other business. Any prospective workers probably would have to live within commuting distance of the project.

If you are making a direct EB-5 investment in your own business, you can personally hire your friends or family members provided that they are in bona fide employment positions and that the individuals hired are U.S. workers, i.e. U.S. citizens or lawful permanent residents. Those workers do not have to live in any particular location; however, if you wish to qualify based upon the fact that your project is located in a Targeted Economic Area (TEA) where the unemployment rate is 1.5 times the national average, generally speaking you must obtain a ruling from the Governor of your state or the official to whom the Governor has delegated the authority, that your enterprise is located in a census tract or an aggregate of census tracts where statistically speaking the unemployment rate is 1.5 times the national average.

You may pick the individuals. It is not so much where they live, but rather are the jobs within the area of the regional center's auspices.

In regional center projects, the employees that are typically counted for the required 10 jobs per investor are INDIRECT jobs. This means that the jobs are forecasted to be created based on an economist's study of the impact the commercial project will have on the local economy. So, because regional center jobs can be solely INDIRECT (for example, based on the expenses paid for construction - which can be tens of millions of dollars for some construction projects), the way an investor "ensures" that the jobs are filled is by choosing a project that will spend the funds required for the project. As a further example, if you are investing in a commercial project for an EB-5 visa, the jobs that are created will be tied to an economist's reasonable study of the impact in the local area. Understanding how job creation methodologies are used in regional center projects can be complex, so you should speak to an experienced EB-5 attorney.

There is no standard for selecting employees that will be eventually counted to meet the EB-5 requirement. Just as well, there is nothing in the law that prevents hiring friends as long as their employment complies with both federal and state labor laws. Consult an attorney for guidance to ensure compliance.

The employees should be hired just as in any employment situation. Friends who are hired may be counted toward the employee as long as they are regular, full-time employees. Family members are not counted.

They have to be genuine U.S. workers performing services 35 hours per week, excluding the investor's immediate family and others including nonimmigrant workers.

If associated with a regional center, you can count direct AND indirect jobs (calculated via economic models, business activity and project expenditures). Direct jobs can be anyone that is not the investor or family members. Also, they must be U.S. citizens or permanent residents, and they must be full-time employees. The types of employees are not considered. They can be executives, managers, lower level, etc.

You must create ten full time positions for each investor. These must be legitimate positions for employees that possess the required skills and qualifications for the position that they fill.

An EB-5 project may employ any U.S. citizen and/or permanent residents. Members of the investor's immediate family (spouse and children) do not count towards the 10 employee requirement, but otherwise there are no bars to employing relatives.

Treat the hiring process as any other job; there is no difference between regular job hiring and EB-5 job hiring - all labor and employment rules/laws apply.

For EB-5 immigrant investor processing purposes, you may not count jobs to the investor or the investor's family members for the 10 minimum/full-time jobs created; however, there is no restriction from hiring friends. And there are no restrictions or requirements on where the employees reside as long as the jobs (i.e., the commercial enterprise) are created in the Targeted Employment Area (TEA) for the $500,000 minimum investment versus $1 million.

As long as there are real jobs, and real people are really doing them, it should make no difference whom you choose to hire.