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How does USCIS view commission only jobs?

We are in the process of evaluating a project to see if it is a good fit for EB-5. The project involves a new office which would include a large sales floor. With regard to the sales floor, how does the USCIS view commission only jobs in terms of job creation? The jobs could be base plus commission if needed, but we just want to understand all of the potential options.

Answers

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    Michael E Piston

    Immigration Attorney
    Answered on

    To count as employment for EB-5 purposes, the jobs must be paid at least the minimum wage required by applicable law for 35 hours a week of work.

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    Ed Beshara

    Immigration Attorney
    Answered on

    In a direct EB-5 project you can only count full time jobs held by U.S. citizens or U.S. permanent residents. In comparison, in a regional center EB-5 project you can count indirect jobs.

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    Stephen Berman

    Immigration Attorney
    Answered on

    I do not know for sure, but it is very reasonable to assume that a commission only job would not be accepted.

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    Karen-Lee Pollak

    Immigration Attorney
    Answered on

    The jobs should be full-time salaried positions. A base that is within the prevailing wage for the job position with commission should be acceptable.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    For jobs to count for EB-5 purposes, they must be held by U.S. citizens or permanent residents, and be full-time positions. That is, independent contractors would not count, nor would part time employees. If you had a third party paying the employees, that may be an issue, but as long as the job creating entity actually employees these people, they should be acceptable for EB-5 purposes.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    The job creation regulation for EB-5 requires 10+ full-time, permanent jobs to be created. Although USCIS has not opined specifically on what the wage must be for these full-time jobs, but I would think that whatever job category those jobs fall under, the wage should be prevailing/market wage that those jobs in that geographical area pay. Thus, purely commission base jobs will not be sufficient to show that these are full-time, permanent jobs as it appears more like an independent contractor without W-2s.

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