What are the salary requirements for EB-5 employees?
I want to start a services business with zero investment in fixed assets (may rent out something). But I would hire 10 workers and pay them salary as per the EB-5 rules. Is this correct - can the EB-5 investment go towards employee salaries? Are there minimum salary requirements for workers I hire?
There are not really fixed rules for the salaries of the employees of an EB-5 project, other than what is required by the local, state, or federal laws for employment (i.e. minimum wage). When filing to remove conditions, you will have to show payroll records for direct employees.
The EB-5 investment should go to the setting up of a new business, soft and hard costs, inventory, furniture, equipment and marketing, and deposits for the lease and salaries. The salaries for the required employees can be at a minimum prevailing wage.
There is no minimum salary (other than the minimum wage), but the positions created must require at least 35 hours per week. The investment can certainly go toward paying employee salaries, but the overall business plan must be credible and feasible in order to get the I-526 petition approved.
I have not seen a salary requirement within the EB-5 law. The requirement is that the employee be qualified, which includes all persons with authorization to work in the United States, excepting the investor, spouse and children as well as nonimmigrant visa holders. Therefore, I assume the following. The investment must be in a single enterprise. The enterprise creates positions. The enterprise uses the invested funds pursuant to the business plan. If the business plan is accepted by USCIS, the enterprise may use the invested funds as planned. If USCIS does not accept the business plan, the salary to be paid is moot. Nevertheless, if the plan were accepted, it would be difficult to hire a qualified person at sub-standard wages. If that were possible and done, it is likely the jobs created would be challenged as not being bona fide positions.
Except for the minimum wage requirements, there is no separate requirement for EB-5 employees. EB-5 funds may go toward payment of wages; however, your business will need a comprehensive EB-5-compliant business plan as well.
Under U.S. law, the only salary requirements are those involving federal minimum wage. There is no regulation that mandates anything other than that for employees of the investment.
John J Downey
Yes, it may go for salaries, but the business plan must make good business sense. The requirement for a full-time employee is 35 hours per week. I assume that the minimum wage requirement for the particular state where the project is located should be met. Once again, it all depends on the business plan making good business sense.
There are no specific salary requirements, but they should be appropriate and obviously meet the minimum wage or better. All of the workers must be U.S. citizens or Lawful Permanent Residents of the United States. Copies of I-9 forms and W-2s would typically be requested. Within reason, a portion of EB-5 investments may go to salaries, but in general you need a business plan showing how you are creating 10 full-time jobs over at least a two-year period or longer and how all of those funds will be utilized during that period of time to create the jobs.