What is the timeline for creating jobs in a direct EB-5 project?

Purchasing this existing business may not be an effective vehicle for a direct EB-5 case based on the detailed regulations that apply. You need a consultation appointment with an immigration attorney who is experienced with EB-5 matters.

Purchasing an existing business should be carefully structured, as there are many complex issues involved. Job creation in a direct EB-5 case is actually harder because you must create direct positions and document them through W-2s, I-9s, etc. A general rule is positions must be created within the two-year conditional green card period and documented at the I-829 petition stage (removal of conditions). Your EB-5-compliant comprehensive five-year business plan must actually outline how you create jobs when you submit your I-526 petition. If you do not create all positions at the I-829 petition stage, you must explain how they will be created within a reasonable time. USCIS will generally issue a request for evidence. Hire an experienced EB-5 immigration attorney to help you with the process and to avoid costly mistakes.

Be very careful purchasing existing businesses, because if the buyer takes the cash and leaves, your case is denied since the money is not invested in the business. Maybe if it is a troubled business you can argue job saving or you can theoretically use the 40 percent rule, except nobody wins via these 40 percent increase in net income or jobs-type cases.

You would need to add or expand by 10 full-time employees as soon as reasonably possible and certainly prior to your requirement to file your I-829 petition to remove conditions. Actually, in the direct EB-5 model, the requirement for job creation is stricter since you have to show actual employees by showing copies of their W-2 and your W-4 forms.

In the direct investment model, you would need to create the 10 jobs during your condition green card period. You must be able to prove to USCIS you met the job-creation requirements, which can be done in a variety of ways. Job creation is not more or less difficult with a direct investment or a regional center. It all depends upon the business you are trying to create or the regional center in which you want to invest. You should consult with an experienced EB-5 attorney to discuss your project and what would constitute job creation.

The standard timeline for creating the required jobs, regardless of whether the situation involves direct investment or investments through a regional center, is that the jobs must be created within two years upon receiving the conditional green card, the approved I-526. This must be done prior to filing for the permanent green card (filing of I-829).

When you submit the application to remove conditional permanent residency, you need to fully document and submit evidence of having created and maintained the requisite 10 full-time job creation requirement along with maintaining the requirements for the investments. Regarding your questions about the strictness of job creation, I am not aware of it being less strict for direct investment (if anything, it is less strict for regional center investment since you can count indirect job hires to meet the minimum 10-job creation).

You will need to hire 10 more full-time employees. Can the store support 14 full-time employees? Not likely! You should perhaps look at investing your money in a regional center project with a good track record. If your EB-5 investment in the store fails, you will lose both your money and your green card. You gave two years from the approval of your EB-5 status to hire the 10 people. I think the requirements for creating jobs are the same for regional center projects, as they are for your own investment. The difference is that in the regional center investment, you might be able to get credit for creating indirect jobs (jobs created in the community because of your investment, not people you hire for yourself). You should consult an experienced EB-5 lawyer before you decide what to do. I have seen several EB-5 investors in convenience stores lose both their money and their green cards. Be cautious.

The 10 new jobs must be created by the time the I-829 is filed (one year and nine months after conditional residency is granted following I-526 approval).

Documenting the job creation for the direct investment is harder in some aspects because they must be direct hires that you should document with W-2s and I-9s. If you have created 10 jobs by the time you file I-829, it is preferable. However, even if you have not yet created full 10 jobs, you still may be OK, as the regulation allows that the jobs could be created within a reasonable time. Since I-829 processing time is now over 30 months, you should be able to add and prove that you have created them when they issue a RFE.