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How would USCIS count jobs in the case of a direct EB-5 investment in a real estate and construction project?

I am a U.S.-licensed dentist currently on an H-1B visa. I want to apply for a direct EB-5 investment. Can I purchase space for the dental office using money gifted from my father from India amounting to $300,000, show it as initial investment, write a business plan and apply for the I-526? Then, if the I-526 gets approved, can I start building a dental office on that space? Will USCIS consider the jobs creating in purchasing and setting up the dental office count towards the 10-job creation requirement?

Answers

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    Ed Beshara

    Immigration Attorney
    Answered on

    You will have to deposit the entire investment amount into an escrow account before you file your I-526 petition. An EB-5 compliant business plan will refer to how the investment funds will be used to create the required jobs. An experienced EB-5 Immigration attorney will be able to advise you on the compliant structure of your EB-5 project.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Direct EB-5 business must create 10+ jobs that it will directly employ and may not use indirect jobs, such as construction workers of a general contractor you will use to build your office space. Also, in order for the construction jobs to be counted as full-time jobs, the construction must last more than 2 years. Finally, the EB-5 investment amount is $1 million, not $300,000. The exception to this rule allowing the minimum investment amount of $500,000 is if the business is in a Targeted Employment Area of either rural area of fewer than 20,000 people or more than 150% national average unemployment. However, it has been my experience that direct EB-5 businesses rarely are able to create and employ people for 10+ full-time, permanent jobs if it is in a TEA with only $500,000 investment.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    You can use a gift from your father for part of EB-5 invested funds. USCIS will require evidence that the funds were lawfully obtained by your father before he lawfully gifted them to you. In the case of a new commercial enterprise (NCE) located in a targeted employment area (TEA), you will need to demonstrate $200,000 in lawfully-obtained funds in addition to the $300,000 gift from your father. All $500,000 must be invested into the NCE and must be at risk (subject to potential gain/loss). As for the direct job creation, it is unlikely that you can get credit for jobs created in purchasing and setting up the dental office. USCIS will require proof of direct W-2 employees, who are qualified U.S. workers and work at least 35 hours per week. The jobs you mentioned sound as if they will either be indirect or not full-time, permanent jobs.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    In order for you to file for the EB-5 Immigrant Petition (I-526), you need to invest at least the minimum capital ($500,000 for a business located in a Targeted Employment Area (TEA) and $1 million, otherwise). A $300,000 initial investment will not qualify. Not sure what you mean by "jobs created in purchasing and setting up the dental office". In order to meet the EB-5 requirement, the 10 jobs created must be full-time jobs to U.S. residents/citizens. The jobs must be created by the time you file to remove the conditional permanent residence, but you must show in the business plan that there is a definite plan and realistic/justifiable need for the 10 jobs in a business such as yours.

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    Michael A Harris, Esq

    Immigration Attorney
    Answered on

    For a direct EB-5 investment that we have successfully set up, the basic rules apply: namely you must invest at least $500,000 (or the minimum investment amount in effect at the time of your filing); you must create 10 full-time jobs for U.S. workers; make an at-risk investment fully committed to the new business. The rules also allow for your father to gift you the funds, subject to being able to prove the origin, source, and path of funds. And, finally, while you can start to invest $300,000, at the time of filing we will have to demonstrate how you have committed the full amount needed (e.g. $500,000) to your new business enterprise.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    There are two issues here. First, while the regulations talk about investing and “in the process of investing,” if you use the gifted money to purchase a space, that often will not be seen as directly contributing to job creation. Moreover, you cannot use retained earnings from that business to contribute towards your investment. Also, most dental offices do not hire 10 full-time employees. While you might be able to apply for a regional center designation or affiliated with a regional center, this one dentist business does not lend itself to the regional center framework. One option you may want to consider is to take the $300,000 gift and, if you own property, try and mortgage it for $200,000 and then simply make an EB-5 regional center investment. There are some good projects out there but you must, of course, do careful due diligence before investing.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You will need to invest $1 million (not $300,000) unless in a TEA then $500,000 before you file. The jobs created in building out the practice will count towards the 10 required jobs and don''t need to be in place by the I-526 filing (they should be in place by the I-829 filing).

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    For a direct EB-5 investment, only direct jobs are counted (i.e., jobs your EB-5 company creates for its operations and hires on W-2 basis). Construction jobs would thus not qualify.

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