How does USCIS regard employee turnover in a direct EB-5 business? It might happen that a direct EB-5 investor buys a business, and one month later, two employees leave to work at a competitor. How tough is the USCIS requirement towards the number of employees and their working time period at a company acquired by a direct EB-5 investor?
Employment is defined in terms of the position, not the person. The position should be full time and permanent. I suggest to get the advice of counsel on the specifics of your situation.
The job creation requirement applies to job positions, not to the individual employees filling them. Therefore, as long as the new commercial enterprise creates the required number of positions by the I-829 stage or within a reasonable period of time thereafter, employee turnover should not affect the removal of condition. In other words, if two employees leave, the NCE should hire replacements as soon as practical in order to demonstrate that the positions have been created/maintained.
If the employee leaves for any reason, you need to fill the vacancy. The employee's time line is determined by the business plan that you submitted initially.
There is no hard and fast rule(s) on employee turnover because it is an issue strictly relating to employment agreement(s). However, as to how you can meet the EB-5 requirement of creating 10 jobs, the investor/employer must hire new employees to meet the EB-5 requirement. Thus, while existing employees can quit at any time, the investor/employer will not be relieved of its EB-5 obligation and must replace the ex-employees to meet the EB-5 job requirement that its investment will result in the creation of 10 jobs.
In a direct EB-5 project, 10 full time employees have to be hired between the two and half year period after the EB-5 petition has been approved.
Turnover is OK. You just need to have 10 full time jobs on payroll at the time of I-829 filing.
Please note that the creation of the jobs are for the positions not persons. If the position was created, you could have different persons occupying the same position over the years. If you lost two employees after only a month, you should be filling those two positions with the new employees. You will have to provide the W-2s and I-9s of the employees you have or had over the years with the I-829 application. Make sure that you have created 10+ full-time, permanent jobs with your new business.
You must have 10 full time qualifying employees. The jobs should be created within 30 months of approval of the I-526.
The jobs created have to be permanent, in that the jobs are meant to remain for the life of the company. Employees who fill those jobs can be at will and may be replaced per management, or, the employees may decide to leave on their own accord. The job must exist and be filled, so as to maintain the permanent nature of the position. If an employee leaves, then you must bring in a replacement. Once conditions are lifted, however, your employment levels are no longer actively monitored.
Both investment and job creation are important for the EB-5 visa. You will not be able to remove conditions from your conditional green card if the 10 jobs are not created and maintained. If you run short of jobs at the end of two year period after approval of your I-526, you can ask for an extension to create the jobs.
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