What are the requirements to prove the creation of 10 jobs for direct EB-5 investments?

Your business should have 10 or more full-time W-2 employees at the time of filing the I-829 petition. The I-829 petition should include copies of the W-2 forms and the completed I-9s of the employees. Also, the I-829 petition should include copies of the U.S. passports, U.S. permanent resident cards or documentation of other qualifying status of each employee.

When an EB-5 investor files his petition on Form I-526, typically that is a promise to create the jobs based upon the proposed investment. It is when you file your petition to remove conditions on Form I-829 that you have to show that the jobs were created; that would be at least 10 jobs for U.S. workers. Typically that is proven by showing the appropriate tax records, individual W2 forms or Form W4 showing the taxes withheld for 10 U.S. workers over a period of time. The longer the period of time, the better prior to filing your Form I-829. The jobs must all be created and maintained within two years from the approval of the I-526 petition.

You can provide copies of W2s, pay stubs, payroll printouts, etc., to show 10 jobs created. The job creation timing should make sense with your business plan and in accordance with your business growth/revenue, etc.

To meet the proven job-creation requirement, the investor must employ 10 full-time qualifying employees. An "employee" is defined as an individual who provides services or labor in exchange for compensation from an employer. "Full-time" employment is defined as an employee having a minimum of 35 working hours per week and excludes independent contract work that meets or surpasses this minimal threshold. For EB-5 purposes, "qualifying employees" are U.S. workers. This category, however, excludes nonimmigrants such as E, H, L, or other temporary worker visa holders, and includes U.S. citizens, permanent residents, asylees and refugees. Jobs occupied by neither EB-5 investors nor their relatives can be counted toward the employment opportunities created. EB-5 investors are not required to hire 10 or more U.S. workers right at the time they initially invest their capital. Rather, they can provide USCIS a comprehensive business plan evidencing the need for at least 10 full-time employees "within a reasonable time" after investment. USCIS considers "reasonable time" to amount to within two years after applying for an EB-5. The W2 is the best document, although the Form 941 is also helpful. As a practical matter, since it now takes over two years to get petition adjudication, USCIS appears to be requiring actual jobs at the time of adjudicating the petition, rather than a mere business plan.

For a direct EB-5, you could only count direct-hire jobs for your business, which USCIS wants to see from the W2s, I-9s and 941 payroll taxes. The time to create the requisite jobs would be before you file the I-829 removal of condition application. If you have not quite created the full 10 jobs at the time of the filing, you should expect to create them by the time that your application is being adjudicated, as USCIS will likely issue a request for evidence to prove that you have created them.

You will need to show that the 10 direct jobs were created when you file the Form I-829. The employment positions can be evidenced by submitting payroll records, W-2s, I-9s, relevant tax records or other similar documents. Generally, there will be a gradual increase in the number of employees as the company grows over time.

This depends on what stage of the process you are in. If you are just starting, then you would show it through the business plan. If you are removing the conditions, then it depends on where you are in the project.