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How can virtual U.S.-based full time employees count towards EB-5 job requirements?

I have a direct EB-5 business plan ready. We want to hire full time U.S. employees, but they want to work from their homes throughout the United States. Can remote workers still be counted under EB-5 job quota requirements? If a worker were to travel outside the United States and work from her laptop in another country, would she still count towards EB-5 job creation requirements? How frequently are employees in EB-5-created jobs allowed to work outside the United States?

Answers

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    While your EB-5 business plan sounds novel, the U.S. Citizenship and Immigration Services (USCIS) is not likely to approve a virtual workers proposal. One of the rules of the EB-5 visa is that the investment must create jobs within a contiguous geographical location and purposely to help in economic development of the specific area where the business is located. Thus, having employees work from their homes throughout the United States will not meet the required standard. Just as well, EB-5 is supposed to result in the creation of jobs in the United States, and any jobs created outside the United States will not be counted.

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    Lei Jiang

    Immigration Attorney
    Answered on

    Occasional travel overseas is okay, but make sure it is really just that.

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    Philip H Teplen

    Immigration Attorney
    Answered on

    Many companies employ staff at remote locations and would be considered a proper EB-5 job. As you travel outside of the United States, such is fine; although, if the job is actually outside of the United States, such needs to be more carefully reviewed.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    If those employees are still full-time employees of the EB-5 job creating entity, they should be counted for EB-5 purposes. If occasional international travel is required for the job, and it is not actually a person living outside of the United States performing the job, it may be counted. However, I would retain U.S. immigration counsel to perform a full review.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Due to the nature of the EB-5 job creation requirements, it would be difficult, if not impossible, for a virtual employee to be counted for EB-5 purposes. There are simply too many issues, such as whether or not the employee is a U.S. employee, whether he or she is working (or whether the NCE is primarily doing business) in a targeted employment area (TEA), whether the position created is actually a full-time position, i.e., how to account for the number of hours worked, etc. While there are no rules specifically governing how frequently EB-5 employees are allowed to work outside of the United States, your business plan would likely come under so much scrutiny and skepticism by the USCIS that it would never be approved.

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    Stephen Berman

    Immigration Attorney
    Answered on

    It may work. You should expect that the U.S. workers must work in the United States close to 100 percent of the time.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The required employees have to have a close geographical connection to the location of the job-creating entity. If the jobs are located in another state or country these jobs may not be able to be counted.

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