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How do fired employees affect EB-5 job creation requirements?

I am an investor looking to establish a startup in the United States and obtain my EB-5 visa. What would happen if I hired an employee, and then had to fire them after they joined the startup? Would I have to I re-hire someone else? Would I have to submit new EB-5 documents if I re-hire?

Answers

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    Elana Laverty

    Immigration Attorney
    Answered on

    The requirement for job creation under EB-5 is that there must be 10 full-time permanent jobs. It is acceptable that you fired an employee for good cause and replaced the fired employee with another employee. It does not matter that the employee was fired and replaced, the importance is placed on the job creation. Therefore there would be no reason to submit new EB-5 documents.

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    Steffanie J Lewis

    Immigration Attorney
    Answered on

    The regulations require that you create full-time jobs. The regulations do not say how you fill those jobs. If you hire one person to fill a job and that person is not capable or willing and you fire that person, simply hire another to fill that job. If you do not need to hire a person to fill the vacant position, then the enterprise has not created that full-time position. The W-2 and I-9 forms that are completed by employees are evidence that you hired and filled 10 jobs. If you were to fire a person, you would file the W-2 and I-9 forms completed by both the person you fired and the person you hired to fill that vacant position.

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    David Sheen

    Immigration Attorney
    Answered on

    This is a great question. Many EB-5 investors will probably ask the same question. The job creation requirement for EB-5 has to do with creating ten full time permanent positions for qualifying U.S. workers. Therefore, it would not affect your case if you simply fired, say a non-performing employee, as long as you intend to keep the position and fill it with another qualifying U.S. worker. Depending on what stage you are at in your EB-5 application process, you probably need not submit new EB-5 documents for the new hire.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Job creation for EB-5 purposes has to consist of permanent, full-time employees. Usually permanent jobs are employed during the entire two-year conditional permanent residency period. You show predicted job creation at the I-526 stage, and actual job creation at the I-829 stage (that is, at the end of the two-year conditional permanent residency period).

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    The actual employee filling the full-time position is not important. It is whether or not the full-time position is filled with a qualifying U.S. worker. Therefore, if your new commercial enterprise creates a full-time position, hires Employee A to fill the position, then fires Employee A, and hires Employee B to fill the position, and maintains the full-time position through the conditional period, you still get credit for that position. You submit proof of employment and proof of your sustaining the investment at the I-829 stage, when you file to remove the condition.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The EB-5 job creation requirement is for the 10+ permanent full-time job positions, not 10 employees. Thus, as long as you created the positions, it does not matter that an employee was fired and you hired another to fill that position.

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    John J Downey

    Immigration Attorney
    Answered on

    You are creating 10 jobs. It is the job itself, not the person. If you fire someone, you simply hire a replacement for that particular Job classification. No need to re-file.

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    Michael A Harris

    Immigration Attorney
    Answered on

    Answering this really depends on the nature of your startup. You will need at least 10 jobs to be created. If you have more than 10 full time jobs, then it would seem to be ok. You should not have to refile a new petition, but you will want to go over this with your immigration counsel.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The required jobs have to be created and sustained until the I-829 petition is filed and approved. Initially, the required jobs have to be created within 1 and 1/2 years after the I-526 is approved (this EB-5 policy becomes unrealistic if we are dealing with Chinese retrogression time delays in the investor obtaining conditional permanent residency).

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    Oliver Huiyue Qiu

    Immigration Attorney
    Answered on

    It is important to distinguish between a position and a particular employee. In order to fulfill the job creation requirement for EB-5 purposes, USCIS looks at how many full-time positions are created and filled by U.S. workers. In other words, it does not impose on the business to employ the same staff throughout the process. Therefore, if you have to, you can terminate a particular employee, depending upon which stage you are at. For example, if you have a pending I-526 application, it may NOT be that urgent to replace the departing employee immediately. The same cannot be said about other stages, though.

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    Karen-Lee Pollak

    Immigration Attorney
    Answered on

    It is only when you file the application to lift conditions on permanent residency (1 year and 9 months after you received your conditional green card) that you must show you employ 10 full time workers.

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