+1-800-997-1228
Questions & Answers

How are fired employees counted towards EB-5 job creation requirements?

I’m an entrepreneur and an angel investor looking to set up a startup in Plano, TX. My annual income is around about $1 million from different businesses. I want to move to the U.S. and setup this new startup since my customers are in the U.S. I have a question that if I hire someone and I have to fire him like 6 months after he joined the startup, but in his place I re-hired someone else, would it be legally valid with the new hire without any complications? Another question is that can I stay in US after I submit a form on my existing B1/B2 visa?

Answers

  • Avatar

    Shahzad Q Qadri

    RC Creator
    Answered on

    There is no restriction on hiring and firing, it is in fact expected. Having said that, provided you meet the requisite job creation it does not matter how many you have fired or hired. Once you file an I-526, you may saty in the US pending a decision even if your B1/B2 expires.

  • Avatar

    Clem Turner

    Securities Attorney
    Answered on

    Regarding your first question, the goal in EB-5 is job creation, not to provide any individual with guaranteed employment. So long as you have created a valid job (and not a sham job) you can fire an employee and rehire a replacement. Similarly, your employee can quit and you can hire a replacement.

  • Avatar

    Michael A Harris

    Immigration Attorney
    Answered on

    It may be possible to count the employees that you had prior to firing them. Each U.S. employee is required to work at least 35 hours per week. Hence, with employment and payroll records you would be able to document that you had the worker employed but replaced him with another person. As for seeking to enter under a B-1/B-2 visa and then seeking the EB-5, it may not be practical. This is because you cannot file for your green card until your EB-5 visa is approved (an estimated 6 to 12 months later). And your B-1/B-2 period of stay may only be valid for up to 6 months or a year, with extensions difficult to come by especially if you have the intent to immigrant here permanently. In fact, entering with the intent to be here permanently is a violation of U.S. law. Seeking a temporary employment visa (perhaps based on your investment, if eligible) may provide you the ability to seek the EB-5 with dual intent to be here permanently and temporarily. For more information, please feel free to contact me.

  • Avatar

    Julia Roussinova

    Immigration Attorney
    Answered on

    It is the actual jobs that count toward the requisite 10-full-time job requirement, not the employees. Permanent full-time jobs must be maintained until the investors'' I-829 petitions to remove conditions are approved. As long as the requisite number of full-time jobs per investor is maintained, employees can be hired at will and fired during the process as long as they are replaced and the actual jobs are maintained. There may be dual intent issues with B-1/B-2 visa. For B-1/B-2 visa purposes, you are required to show nonimmigrant intent and that you are visiting the US temporarily and maintain ties to your home country to which you intend to return after a temporary visit to the US. I-526 petition itself does not give you a lawful immigration status in the US. Once you file I-526 petition, you express your intent to immigrate to the US. It also depends if you are actually issued an automatic 6-month period of admission upon your admission to the US on B-1/B-2 visa. An extension may be filed for another 6 months if you demonstrate your eligibility for extension. I-526 petition adjudication takes about 8-9 months to adjudicate right now, so B-1/B-2 extension will likely be necessary. If you file an immigrant I-526 petition, the same must be disclosed on a B-1/B-2 extension application to USCIS and there is a risk B-1/B-2 extension may be denied. It is generally recommended that a more conservative approach is taken and you file I-526 petition from abroad and arrive on immigrant visa and get admitted to the US as a conditional permanent resident once your I-526 petition is approved. Do not hesitate to contact me, should you have further questions.

  • Avatar

    Ying Lu

    Immigration Attorney
    Answered on

    You can fire one employee and re-hire another to replace the fired employee. By doing so, you just substitute an employee. For this specific position, you only created one job. Be sure to keep paper documentation to properly document the substitution. As to your second question, you can remain in the U.S. for as long as the B1/B2 visa is valid. However, filing an I-526 petition does not in itself grant you any immigration status or right to stay.

  • Avatar

    Lei Jiang

    Immigration Attorney
    Answered on

    Yes. You can make a new hire after you fire the first employee. As to the stay, it''s possible but you need to consult an immigration attorney. Please feel free to contact our office.

  • Avatar

    Philip H Teplen

    Immigration Attorney
    Answered on

    It is perfectly fine to replace one newly created job with another individual. It is still counted as one job. As for staying in the United States, such really requires individual consultation as to the timing of the investment, timing of application filing and related matters. It is possible. I suggest that you call or email me to arrange a consultation.

  • Avatar

    Steven Anapoell

    Securities Attorney
    Answered on

    You can hire and fire. The counting of employees depends on whether you use an indirect approach and economic model or direct w-2 approach.

  • Avatar

    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The requirement is to create ten fulltime POSITIONS. It does not matter if you fire and rehire to keep the position filled as long as the replacement is a qualifying U.S. worker.

  • Avatar

    Karen Weinstock

    Immigration Attorney
    Answered on

    You should talk to a good immigration attorney about work visa options. Usually a B-1/B-2 visa is not a valid option to remain here and work for a U.S. business.

  • Avatar

    Elizabeth Krukova

    Immigration Attorney
    Answered on

    You can replace one employee with another one; employment is at will, meaning you can fire him or he/she can leave the company. As long as you hire someone else, you are fine. As for your stay in US, you should be aware that filing of your I-526 does not give you independent right to stay in US. You would have to maintain some legal status in parallel while your petition is pending. It can be a B1/B2 extension like you suggested or possibly something else.

  • Avatar

    Rakesh Mehrotra

    Immigration Attorney
    Answered on

    There is no requirement that you cannot fire any employee. As long as you can demonstrate that you have created 10 jobs the requirement for EB 5 program can be fulfilled. Thus if you rehire another employee instead of the employee that has been fired that is OK. If you are in the US on B1/B2 yes you can stay in US after submitting I-526 for the duration of your I-94.

  • Avatar

    Dawn M Lurie

    Immigration Attorney
    Answered on

    Generally individual employees are not counted but rather the job itself. Accordingly as long as the position has been created and if the job is intact during the time you apply to remove the conditions on your residence the USCIS should count the job. It is advisable for you to seek guidance from a qualified immigration attorney to review your status in the US. Keep in mind the filing of a I-526 application does not provide any status in the U.S. and you may run into complications trying to extend the time on your B-1/2 with an I-526 on file.

  • Avatar

    Susan Pilcher

    Immigration Attorney
    Answered on

    It is the job itself that needs to be a new, "permanent" job. EB-5 regulations permit you to replace employees with new employees, but an employee hired to fill an existing position cannot be counted as a "new job" for job creation purposes.

  • Avatar

    Neville M Leslie

    Immigration Attorney
    Answered on

    As long as you replace fired employees, you are fine.

  • Avatar

    Jinhee Wilde

    Immigration Attorney
    Answered on

    The EB-5 jobs creation requirement is for position, not specific person. As long as the full-time, permanent job is created and show that the same position with same job requirement is being maintained and proven with W-2 and i-9 trails, hiring and firing decision is yours. Also, as I-526 petition is taking 8 months to adjudicate these days, you will need to request the B-1/B-2 extension and get it approved in order to stay in U.S.

  • Avatar

    Ed Beshara

    Immigration Attorney
    Answered on

    An EB-5 investment is required to create 10 new jobs, not re-hiring employees who were employed before the EB-5 investment. If the EB-5 investment has created 10 new jobs and some employees leave , then it is acceptable that other new employees are hired .The new employment has to be created and continue to exist during their two year permanent residency. You can continue to stay in the US under B status while the I-526 petition is pending. However , under B status the investor can not be employed in the U.S. or be directly involved in the management of the U.S. EB-5 business.

  • Avatar

    Denyse Sabagh

    Immigration Attorney
    Answered on

    The investment must create at least 10 jobs for U.S. workers. If a worker is terminated but another one is hired, most likely it would meet the requirements. If you enter on a visitor visa, you are usually given a 6 month period of stay. The I-526 application must be approved before you can file the I-485 application to adjust status to permanent residence. The I-526 process currently is taking at least 6 months plus. Most likely you would need to depart the U.S. if the I-526 has not been approved. You must be in a valid non-immigrant status to file the I-485 application. Most likely, the timing won''t work.

  • Avatar

    Boyd Campbell

    Immigration Attorney
    Answered on

    The new hire will not complicate anything. You have simply replaced a worker.

  • Avatar

    Robert P Gaffney

    Immigration Attorney
    Answered on

    The job creation requirements of the EB-5 provisions focus on the creation of employment positions, and not on specific employees. If a created position becomes vacant due to the termination of the employee, the position may be re-filled with a qualified U.S. worker. The B-1/B-2 visa is a temporary visa that may be used for temporary visits to the United States for business or pleasure. Visitors entering the U.S. on B visas must not have the intent, either at the time of applying for the visa, or at the time of applying for admission to the U.S. to remain in the U.S. permanently. In some situations a change of circumstances arising after a visitor enters the United States may give rise to a good faith decision to apply for immigrant status after a bona fide temporary admission. The pros and cons of any such course of action should be discussed in advance with a competent immigration attorney.

  • Avatar

    Taher Kameli

    Immigration Attorney
    Answered on

    Eb5 employment is not about the person, but the position. As long as you have the position available, you can have people come and go for that position.

Add your comment

Use a Facebook account to add a comment, subject to Facebook's Terms of Service and Privacy Policy. Your Facebook name, photo & other personal information you make public on Facebook will appear with your comment.