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How closely does actual job creation need to match an EB-5 business plan?

Because of the nature of a new business, it seems likely that I will not be able to create jobs where I expected, but that they will be created in another service area. For example, if my EB-5 business plan indicates five janitor positions and five receptionist positions, but after two years, all 10 positions are for receptionists, would my application still be approved? How can I avoid making my EB-5 business plan generic, but still keep it accurate in terms of job creation?

Answers

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    Shahzad Q Qadri

    RC Creator
    Answered on

    So long as the job counts match the actual positions it should not matter. Depending on the model used, you just need to show that the funds were expended and the jobs were created.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    It needs to match pretty close or if there is any change in the business plan, it cannot be a material change. Your description of facts might be considered a material change because it appears to be a different business sector/industry, i.e., receptionists v. janitors. On the other hand, you can make the argument that the business industry is the same and due to business necessity, you needed to hire receptionists instead of janitors. You should be prepared to provide adequate business necessity justification for why your business plan changed and make the argument that the industry is the same. You should consult with an experienced EB-5 immigration attorney who can advise you on such matters.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If you are using a direct EB-5 investment, having the 10 direct jobs is most important, but the nature of those particular jobs may be acceptable as long as they are full time positions held by U.S. citizens or permanent residents.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The required job creation will either be based upon a direct investment or a regional center EB-5 project. It is acceptable if the business continues in the same industry classification (e.g. restaurant) as stated in the business plan. As long as the jobs are created after the conditional permanent residency is obtained, then regardless of whether the jobs are receptionists or janitorial services, the required jobs can still be created.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    It is highly advisable that you retain an experienced EB-5 business plan writer to ensure your business plan meets all criteria. There should not be substantial change in occupations reasonably needed for the business to succeed. There should be at least 10 full-time positions, paid at at least 35 hours per week. It does not make sense to have 10 receptionists unless this is what is required for your business industry.

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    John J Downey

    Immigration Attorney
    Answered on

    The scenario you mention should not be a problem. It is not a substantial change in occupations. Make sure the overall plan is still close to what you submitted.

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    James Wolf

    Immigration Attorney
    Answered on

    I assume this is a non-regional center case and you are not calculating any indirect job creation. If so, the USCIS does not care about the job duties of the 10 new positions your investment creates. It only cares that there are 10 separate new positions, each paid at least 35 hours per week, as shown by payroll tax records. The payroll tax records need to be under the federal employer identification number of the company which received your EB-5 investment. Your business plan should include an org chart that shows the company workers, at six month intervals for the first three to five years. This org chart needs to match the company cash flow statement covering the same period.

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    Karen-Lee Pollak

    Immigration Attorney
    Answered on

    We highly recommend that you work with an experienced EB-5 business plan writer who is familiar with the EB-5 program requirements and can ensure that your plan meets all specific USCIS criteria while not being generic. The EB-5 program requires you to create 10 full-time positions which are held by persons lawfully authorized to work in the United States. Full-time is defined as 35 working hours per week. Job sharing among employees is also acceptable. You should try to stick to your business plan as far as possible in terms of job creation, as this is the crux of the program. The positions should also be reasonably related to the success of your business as you may have to justify why you have 10 receptionists and no other type of employees. However, there is no specific requirement as to what your employees do as long as you create 10 full time jobs - so a deviation from your business plan in regard to numbers of janitors vs. receptionists will not be fatal as long as you can justify it and it is reasonable.

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