Questions & Answers

How are EB-5 jobs counted for a staffing company project?

I am thinking of investing directly in an EB-5 company. The company was just formed. It is a staffing company that has, or will have, several long-term contracts to provide full-time employees to large corporations. The employees will be working full-time. They are hired by the staffing company and will be paid by the staffing company. Their benefits will also be paid by the staffing company. Will this satisfy EB-5 job creation requirements assuming there will be more than 10 full-time employees? Also, the company will have an office in a rural location. However, the office will only be staffed with a manager and some support staff. The employees who will be sent to work for corporations in several distant metropolitan areas...but within the same state. For determining TEA status, will the USCIS look to the location of the staffing company or the locations where the employees actually are sent to perform their work? Your assistance will be greatly appreciated.

Answers

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on November 10, 2017

  The employees must be working directly for the new commercial enterprise (NCE), so as long as they are considered full-time positions with the staffing company, which will be the NCE, it should work. TEA is determined by where the NCE is principally doing business. This definition depends on a number of factors, one of which is where the employees will be physically located. You should contact an experienced EB-5 attorney to talk through the other factors to see if the location can be designated as a TEA.

• Charles Foster

  Immigration Attorney

  Answered on October 26, 2017

  As long as the employees are direct employees and paid by the company in which you invest and there are at least 10 full-time employees, that should satisfy the EB-5 job creation requirements. Normally, the determination of whether a project is located in TEA would be based upon the location of the job-creating entity.

• BoBi Ahn

  Immigration Attorney

  Answered on October 24, 2017

  As long the requisite 10 jobs are full-time jobs, created by the requisite minimum investment by the EB-5 investor and employed by the NCE, they would qualify. As far as TEA is concerned, that would be determined by the location of the NCE, not the client sites.

• Jon Eric Garde

  Immigration Attorney

  Answered on October 23, 2017

  The USCIS will count full-time employment in terms of man-hours (eight per day, minimum 37.5 per week). Take off two weeks for vacation, meaning multiply that by 351, and you have a year of full-time employment. So, more than ten persons for a staffing agency may be required to satisfy the 10 jobs created requirement. As for the TEA, that will depend on where the jobs are being created.

• Lynne Feldman

  Immigration Attorney

  Answered on October 23, 2017

  This is complicated as it depends on where the employees will actually be working.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on October 23, 2017

  Generally, it is not where the headquarters are located but where most of the workers will be that qualifies a project as “rural.” However, the key aspect to understand, under current rules, is that if you are using a regional center, then it may be possible to count indirect and even induced jobs. So, you are not counting direct hires, but rather calculating job creation based on expenditure models such as RIMS 11. In the context of direct EB-5, the employees have to be employed by the job-creating entity directly which could be the staffing company. This is definitely a viable EB-5 framework but needs careful structuring to comply with current rules.