How does a direct business document its EB-5 job creation?

Documentation usually consists of I-9s, W-2s, tax returns, payroll records, etc. You cannot use part-time positions, but let's say two part-time employees may fill in a single full-time position. It is positions that count, not employees who can be hired or fired. An EB-5 investor in a direct investment must create at least 10 full-time jobs. It is important that you consult an experienced EB-5 immigration attorney so as not to affect your EB-5 investor adversely.

In a direct EB-5 project you cannot combine two part-time jobs to show compliance with one full-time job. However, a project may use a regional center designation to show how the required number of jobs can be calculated indirectly. Under these circumstances you will have an EB-5 compliant project.

A direct business documents its job creation through I-9 employee eligibility verification forms and back up documentation, payroll records, quarterly wage reports, and tax returns. Part-time jobs do not count, but part-time employees filling a full-time position will count. You should consult with an experienced immigration attorney who can advise you on how to document the full-time jobs.

Combinations of jobs is possible. According to USCIS, a full-time employment position can be filled by two or more qualifying employees in a job sharing arrangement as long as the 35-working-hours-per-week requirement is met. However, a full-time employment position cannot be filled by combinations of part-time positions, even if those positions when combined meet the hourly requirement. Therefore, your proposal may not work. Please consult with EB-5 immigration counsel for approvable solutions.

The usual procedure is to produce W-2 forms showing the employee and hours of employment. Two part-time workers at 17.5 hours each will equal one full-time job.

You cannot add part-time jobs together to count as full-time jobs. There is one exception: if two employees "job share" they can count as one full-time job. For example, if a hotel hires an account clerk who is a college student who can only work four hours a day; he has a friend who can work the other four hours a day. This is job sharing. It is very hard to convince USCIS to count these type of jobs. For example a hotel who uses part-time housekeepers for 4 - 6 hours every morning, cannot count two part-time housekeepers as one full-time job. Get good advice from an experienced EB-5 lawyer before going further!

Please note that the requirements for the job creation are for the permanent, full-time job positions, not the number of people you employ. USCIS has considered job sharing and two part-time positions as equal to one full-time position in the past. However, I would caution you on trying to remove conditions on merely 350 hours per week calculations. It would behoove you to build in a buffer and increase more full-time positions, rather than the majority of part-time positions as you have now.

Job creation is documented through hiring records such as W-2 forms and payroll records. For EB-5, you are required to hire full-time employees and you cannot count part-time positions. There is a concept of job sharing, but you should sit down and speak to an immigration lawyer if you want to go that route.

All employees must be full-time workers. While job sharing may be permitted, part-time positions will not be. That is a fine distinction that a competent immigration attorney should be able to advise on for the necessary documentation and business plan.