Could I allow EB-5 eligibility under 8 CFR §204.6(e) in the following scenario: I purchase two existing restaurant/franchise locations that together employ 10 W-2 workers at the time of acquisition, and after making my EB-5 investment I expand operations and increase total employment to 15–16 full-time W-2 employees, resulting in a net job increase of at least 40%, with all new jobs created after the investment and directly attributable to my EB-5 capital—assuming all other EB-5 requirements (lawful source of funds, at-risk investment, and compliant business plan) are met, would this qualify as EB-5-compliant job creation for a Direct EB-5 petition?
Answers
Lynne Feldman
EB-5 Immigration attorneysNo, that is not 10 additional jobs. If the business can qualify as a troubled business, then more leniency.
Bernard P Wolfsdorf
EB-5 Immigration attorneysTechnically this sounds reasonable. Having filed EB-5 cases for over 30 years, I need to point out that almost all direct cases involving existing business’s are denied.
They take about three years or adjudicate and then you will get an RFE or NOID.
It’s much better to start a new business ground up because it’s much easier to prove the necessary 10 jobs created. My only exception would be if the business is a troubled business.
David Hirson
EB-5 Immigration attorneysI have had this issue in the past. Your plan would work if you were saving a failing business. My understanding is that you still need a minimum of 10 additional jobs that must increase the payroll by at least 40%.
Also, note that the 10 employees must be full time - 35 hours per week minimum. On payroll and be lawfully entitled to be employed in the US. They also may not be immediate relatives of the investor.
Finally watch where the minimum $1,050,000 or $800,000 principal EB-5 investment comes from. Reinvestment of profits has to follow a protocol acceptable to USCIS.
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