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Can we count existing jobs in a direct EB-5 investment?

I am on an E-2 visa and running a café. My wife and I are India-born Canadian citizens who are interested in a direct EB-5 investment. If I acquire an existing business, such as a restaurant or a day-care center in a qualified TEA that already has 10 or more jobs created, would they count toward the job requirements or do we need to create 10 additional jobs? Secondly, are there any concerns with our existing E-2 visas, which are good until mid-2022?

Answers

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You will generally need to create new full-time positions unless you invest in a troubled business or take earnings from current business and proceed with a new EB-5 case through a regional center project where indirect jobs can be counted. It may be possible to convert an E-2 business to EB-5 if it were properly structured originally, but this is a complex question and requires a full consultation with a competent EB-5 immigration attorney. Your valid E-2 visa remains valid. It may be difficult to obtain E-2 extensions in the U.S. if you file an immigrant petition such as I-526 for an EB-5 visa.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Based on the information you provided, it may be possible if the business qualifies as a "troubled business" that shows a loss, etc. And no, there should not be any issues on extending your E-2.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    You cannot count existing jobs unless the business was a failing business with losses in the last year or two before you bought it. You need to hire 10 more new full-time employees. You might be much better advised to invest your $500,000 in a safe EB-5 regional center. After you get your green cards from the EB-5 investment, then two years later you have to file more documents to prove you put in the money and hired 10 new full-time employees. If your business went broke, you will lose both your money and your green cards! Your applying for EB-5 should not affect your E-2 visa status. However, if you leave the USA and need to apply for a new visa stamp in your passport, it might be hard to get if you have an EB-5 case pending. It depends on the consular officer.

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    Marisa Casablanca

    Immigration Attorney
    Answered on

    Your investment must create 10 jobs in order to qualify. That means that you would have to create 10 additional jobs at a business that you purchase or invest in. There should be no concerns with the E-2 visa unless it expires before your petition is approved. The E-2 visa may be denied due to immigrant intent. That means that if you move forward with an extension of the E-2 visa when you have already filed a petition for residency, the E-2 may be denied due to immigrant intent.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    First, the good news. There is no problem with extending the E-2 provided you show an intent to return eventually. As for EB-5, it is extremely difficult to covert to EB-5 if this was not structured as an EB-5 case from the beginning. It is doable in some cases, but the key is to focus on new jobs and new job creation. If this was a troubled business with losses of 20 percent, as reflected on the tax return, then it is possible. Most likely the best option is to take the profits and start a new business, or realistically invest in a regional center project. There is a reason 95 percent of EB-5 is regional center-based. It is the best option because you count indirect jobs. Do the math, 10 direct jobs for five years. It is a fee million.

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    Irina Rostova

    Immigration Attorney
    Answered on

    EB-5 jobs have to be new positions. Jobs that existed when you bought the business will not count toward the job requirement. Renewing the E-2 visas after you have showed your immigrant intent may be harder because it is an non-immigrant visa.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    EB-5 requires new job creation. Therefore, the existing jobs at a business you acquire typically cannot be counted toward meeting the employment-creation requirement. If structured properly, however, you may be able to get EB-5 credit for any new full-time jobs created through your E-2 investment. Such credit would reduce the number of jobs needed to add/expand if you acquire an existing business. Both businesses, your E-2 cafe and your EB-5 business, must be held under the same new commercial enterprise in order to count the jobs for EB-5 purposes.

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    Salvatore Picataggio

    Immigration Attorney
    Answered on

    Ten additional jobs are needed. You created jobs with the E-2 business, right? You may be able to invest more into your business and add more jobs to meet the EB-5 requirements and use the E-2 business for EB-5.

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    Abhinav Lohia

    Immigration Attorney
    Answered on

    You have to create 10 new American jobs. Existing jobs will not count. While immigrant intent goes against am E-2 visa, I have never seen anyone on an E-2 visa face problems after filing an EB-5 application.

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    Jinhee Wilde

    Immigration Attorney
    Answered on

    You cannot count existing jobs, unless the business you will purchase is a failing one. After you file the I-526, it will be difficult to extend your E-2 visa.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    This would need to be evaluated. It depends on whether the business being acquired qualifies as a troubled business. The E-2 can continue while awaiting the conditional resident approval.

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    Sarah Xiao Qian Mu

    Immigration Attorney
    Answered on

    The 10 existing jobs will not be counted toward your EB-5 unless it is a distressed business at the time of purchase. E-2 can be changed to EB-5.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Generally, you can''t count existing jobs of the business you are buying as part of jobs you are supposed to create. For better organization of your plan, work with an EB-5 attorney, particularly on the creation of a business plan. Also, your current E-2 visa is fine and you should be in order during the pendency of your I-526.

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    Charles Foster

    Immigration Attorney
    Answered on

    If one acquires an existing business, you would have to show that as a result of your $500,000 or $1-million investment, you have created 10 additional jobs for U.S. workers. If you have a valid E-2 visa it should remain valid, and the fact that you filed an EB-5 investor petition on Form I-526 should not negatively impact same.

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