An investor needs to create at least 10 full-time positions through his/her investment in order to qualify for an EB-5 petition.
An “employee” is an individual who provides services or labor in exchange for compensation. “Full time employment” requires a minimum of 35 working hours per week. This does not include independent contractors. Non-immigrants (those with E, H, L, and other temporary worker visas) are not considered U.S. workers for this purpose. Moreover, the investor and his or her family members are not considered as U.S. workers for the 10 full-time employees requirement. Investors are not required to hire 10 employees at the time of initial investment. They may provide a petition with a comprehensive business plan demonstrating the need for at least 10 employees within the next two years. The ten jobs need to be occupied by U.S. citizens, U.S. permanent residents, asylees, or refugees.
In the case of a “troubled business”, meaning the investor invests in a declining business with a net loss for 1 or 2 years equaling at least 20% of total net worth, there is no requirement for job creation. The job creation requirement is met as long as the investment sustains at least 10 U.S. workers.
The Regional Center Program removes the 10 employee requirement, allowing the investor to qualify for an EB-5 green card by directly and indirectly hiring 10 people; whereas an alien investing in a new commercial enterprise under the basic programs must satisfy the job requirement through the creation of 10 direct jobs for U.S. workers. USCIS defines direct jobs as those that establish an employer-employee relationship between the newly established commercial enterprise and the persons that they employ. By contrast, USCIS defines indirect jobs as those held by persons who work outside the newly established commercial enterprise. Indirect jobs include equipment manufacturers and services used by a commercial enterprise. Furthermore, Regional Center programs do not require the investor's day-to-day management or involvement in running an active business, nor do they require investors to live in the place of investment. For those investors who have no management knowledge or experience, Regional Center programs provide a more flexible choice.
USCIS now considers direct and indirect construction jobs created by the investor that last for at least 2 years. For instance, if a petitioner can reasonably prove the need for construction work for 35 hours a week over the course of at least two years prior to filing I-829, such positions will meet the full-time requirement. However, if on the same project, the petitioner hires electricians who only came intermittently for three or four week periods over the course of the project, such positions would not meet the full-time requirement.
For more information on the EB-5 Visa, please refer to the following links: