I have invested $1 million in houses back in 2013. I am not sure if 10 jobs have been created, but we have several contracts to keep up with maintenance and renovations. If we can prove that, among all contractors, we have maintained at least 10 jobs, would it be possible to apply for an EB-5 with this housing investment? If I cannot do this, can you please explain why?
The job creation requirement for your EB-5 states that your new business entity must create and maintain 10+ full-time, permanent jobs. The evidence to prove the job creation at the time of I-829 would be the W-2s and I-9s of your employees. Because your direct EB-5 investment cannot count indirect jobs (because you are not going through a regional center), you may not count the employees of the contractors you use.
Since contract workers are not directly employed by a company, they would not qualify your business for a direct EB-5 investment. Depending upon the nature of your business, it could potentially work as a regional center project. I would need more information about the nature of your business to make such a determination.
You have described what is called a direct EB-5 investment and, under certain circumstances, you could possibly use the funds you have already invested. Remember, you must show you have created 10 full-time jobs for each investment and have maintained those jobs in the time it takes to remove conditions on your permanent residency. Based on our experience, it is unlikely that you would have created the jobs that would have lasted long enough or that would still be ongoing throughout the process that you would just be starting. It may be better to invest $500,000 in an existing EB-5 regional center program that has a good reputation and reliable results.
Contractors do not qualify as EB-5 direct employees. The EB-5 law requires direct employment or a regional center designation for indirect/induced employment.
A simple investment in real estate will not usually qualify under the EB-5 Immigrant Investor Program. If the investment is for development, then this may qualify. However, you would need to show that at least 10 new jobs directly created by your investment. Unless the project is located within and sponsored by a regional center, those jobs must be direct employees; so, contractors would not normally qualify. A further issue may be that construction jobs are usually not regarded as permanent due to their transient nature.
The project would need to be analyzed to see if it is an active or passive investment, if full-time jobs created, etc.
The critical aspect is the investment must directly or indirectly create 10 new jobs. Investing in real estate and remodeling or rebuilding can be viable, but the project must be structured carefully. It is unlikely the purchase of a $1 million home resulted in 10 full-time jobs, but investing in a new regional center that is structured correctly can result in permanent residence.
The EB-5 statutes require the petitioner (investor) to create an original commercial enterprise, which can include a holding company. The foreign national investor must maintain more than a passive role in the new enterprise. The purchase of homes likely will not qualify as an investment. However, a real estate company may qualify as an EB-5 investment if the company and investment are structured properly and in compliance with the statutes. For example, a company that purchases homes, develops real estate or otherwise engages in business (again, not passively investing by purchasing homes) and the investment creates 10 permanent, full-time jobs, then the project may qualify for as an EB-5 enterprise. Before you make any investment, form a company, etc., you should retain a qualified immigration attorney to assist you.
Because simply owning houses is not a business, there is a very slim chance this will work for EB-5. Having contracts with maintenance is not the same as having 10 full-time employees.
