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What are the restrictions of the job creation requirement?

I am investing in a new direct EB-5 venture. My co-investor, who is a US citizen, and myself are both members of the LLC. If my co-investor is a salaried employee of the LLC, can he also be counted as part of the 10 jobs needed? After reviewing this forum, I see that my case may take up to one year for adjudication. Since we are planning to start the business before my visa is approved, can the business plan show that the jobs will be created within three years rather than two years, since it will take about a year for my visa to be approved?

Answers

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    Reza Rahbaran

    Immigration Attorney
    Answered on

    Your business plan should show that the job creation requirement will be met within two years. If the jobs are not created by then, you must be able to prove that the remaining jobs will be created within a reasonable time. As to your co-investor counting as a full-time job for EB-5 purposes, USCIS has previously stated that an employer cannot be an employee.

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    Lei Jiang

    Immigration Attorney
    Answered on

    If your co-investor is an employee, yes he can be counted as 1 of the 10 jobs. The job should be created at the I-829 application stage. At the I-526 stage, you should show that the jobs will be created within 30 months.

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    Shahzad Q Qadri

    RC Creator
    Answered on

    If he is in fact an employee, meaning that if he did not do the job you would have to hire someone else to do it, then yes you can count his position. The jobs have to be created 2.5 years from the date of approval, as such I would limit it to that.

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    Ed Beshara

    Immigration Attorney
    Answered on

    The facts of your case apparently covers a direct EB-5 investment. That is, you personally are investing your funds in a new commercial enterprise which is also the job creating entity and you will become an equity owner. First, your partner, a U.S. Citizen, may be considered to be a direct full time employee of the job creating entity. Second, your personal funds may be invested and committed to the new commercial enterprise which is also the job creating entity and the required jobs can be created before you actually obtain your conditional permanent residency. The general EB-5 policy is that the jobs required to be created should occur within a 2 1/2 year period after your investor petition is approved. However, based upon the reality of time delays we must show in the comprehensive business plan that the jobs created were created as a result of your investment and will be maintained at least until the time of the I-829 petition and finalization of the conditions being removed. Please note that you will obtain the conditional residency for a two-year period and before the end of that two-year anniversary you''ll have to file an I-829 petition to remove those conditions. The petition process and adjudication to remove the conditions might take up to 12 months and therefore the jobs need to be maintained during this period of time.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    If the position to be filled by your co-investor is a full-time job for a U.S. worker, then yes, it should count. Only your immediate family members, if employed by the new commercial enterprise, would not be counted. The business plan must show that the jobs will be created within two years of the initial green card approval or within a reasonable period of time after that. USCIS has indicated that six months to one year might be considered within a reasonable period of time, provided that there is business necessity or other reasonable justification for any delay in job creation. You should consult with an experienced EB-5 immigration attorney for specific legal advice on these matters.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Yes, the jobs need to be in place or close at the time of filing the I-829 which is approximately three years from the date of the investment with current processing times.

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    Olga Karasik

    Immigration Attorney
    Answered on

    Your U.S. partner/investor cannot count against 10 job creation requirement. The one-year processing time refers to EB-5 visa applications for regional centers. EB-5 visa applications from direct investment are adjudicated much faster. Our firm gets 3-4 direct investment green cards approved a year and usually they take less than 6 months to adjudicate. If you have any other questions regarding direct investment visa requirements, please do not hesitate to contact me at any time.

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    Michael A Harris

    Immigration Attorney
    Answered on

    I would have concerns only because USCIS has made it their policy in other business immigration cases that an individual cannot be both the employer and employee. Since your partner may serve in both positions, USCIS may have an issue with it. This part of the law is an evolving standard, and you should consult with an immigration attorney before you start your project.

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    Jeffrey E Campion

    Immigration Attorney
    Answered on

    When you submit your business plan you have to show that it is reasonable that the jobs will be created within 30 months of adjudication of your I-526. This should allow you sufficient time to prove the jobs will be created.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    The timelines for job creation should show the jobs will exist for two years. For a direct investment, any direct, full time employee of the enterprise could be counted. For regional center investments, indirect jobs can also be counted.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    Your co-investor could be counting in 10+ jobs for U.S. workers. If you will also work for the company, you cannot be counted. As to the job creation requirement timing, you need to show that you have created the jobs by the time that your I-829 will be submitted, which is about 3 years from now as things stand. Also, even if the jobs were not created as yet when that I-829 is filed, if you can prove that it will be created shortly it should be okay.

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