How can I count retained jobs?

If you are investing in an existing business, you must create ten jobs. Retaining jobs may not be counted.

The EB-5 funds must be used to create additional jobs, unless the new commercial enterprise is a troubled business. A troubled business is an enterprise that has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period prior to the priority date on the immigrant investor's Form I-526. The loss for this period must be at least 20 percent of the troubled business' net worth prior to the loss. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.

Generally, an EB-5 investment is supposed to create a minimum of 10 new jobs. USCIS, in reviewing your proposed EB-5 investment, is likely to disagree with the presumption that an investment that keeps 10 employees on their jobs is eligible for EB-5 except if the business in question is a troubled business which has been losing money and you are almost literally saving the business from going out of business. Thus, you will need to be treated as a successor in interest. To further evaluate your proposal, try to address the following 3 sets of facts on the start-up business in question: 1) To qualify as a troubled business, the start-up business must have been in existence for a minimum of 2 years. Is that the case in your situation? 2) Also, the troubled business rule requires that the start-up business in question must have been losing a minimum of 20% of its net worth in the last 12-24 months before your investment (i.e. prior to filing of your Form I-526). Is that applicable to the start-up business in question? and 3) Finally, your investment must create actual 10 jobs and retain them on full-time basis. Would that happen in this instance? If the answer to any of these 3 questions is no, your proposed idea may not be eligible. These are just a few questions that need answers and there are other significant issues that need to be addressed as well. Advisably, consult an EB-5 immigration attorney for a thorough analysis.

Retention of employees is generally not a qualifying position unless you can show that the business was troubled and the investment sustained the jobs. However, the better position is to create a new company and do an asset purchase wherein the employees become employees of the new company. I will be happy to help if you like.

Unless this is a troubled business (which has been in existence for at least two years and incurred a net loss during the 12-24 month period prior to the investor''s I-526), then no, retention of existing jobs will not count.

Investing in an existing business has special requirements, and you would need to show 10 jobs were CREATED because of your investment.

To invest is an existing business will require the guidance of an experienced immigration EB-5 attorney, such as the ones at our law firm. You can invest in either an existing financially viable business or a troubled business and create the required jobs based upon the EB-5 rules and current policies.

Maintaining the pre-investment number of jobs is available only if the business qualifies as a troubled business, which is one that has been in existence for at least two years and has sustained a loss for accounting purposes in the last 12 or 24 month period equal to at least 20 percent of its net worth. A start-up company (in existence less than two years) would not qualify. The new commercial enterprise must create ten new full-time jobs within two years of your investment.