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EB-5 Question of the Week: What are the job creation requirements of the EB-5 program?

One of the crucial requirements of the EB-5 Immigrant Investor Program is that an EB-5 investor must create at least ten full-time jobs for qualifying employees.

The EB-5 Immigrant Investor Program was created in 1990 by Congress with the aim of boosting foreign investment in the United States economy in exchange for U.S. residency and Green Cards. With an investment of $800,000, foreign investors can receive Green Cards for themselves and their qualifying dependents. In order to satisfy the goal of boosting the U.S. economy, one of the most important requirements of the EB-5 program is that each investor must create at least ten full-time positions for qualifying employees with their investment of $800,000 in a new commercial enterprise (NCE).

The job creation requirements differ depending on whether the investor is applying directly or through a regional center. In a direct investment, an investor must directly create ten full-time positions. In a regional center investment, the new commercial enterprise can directly or indirectly create the required jobs, out of which up to 90% may be indirect and 10% must be direct jobs.

The difference between direct and indirect jobs is that a direct job establishes an employer-employee relationship between the NCE and the person hired to do the job, whereas an indirect job is held outside the new commercial enterprise but is created as a result of it. For example, if the investment is in a restaurant, examples of direct job creation would be persons hired to serve as the chef, wait staff, and kitchen personnel. In contrast, indirect job creation would be extra persons hired by a third-party that contracts with the restaurant, such as employees hired by a cleaning company that provides cleaning services to the restaurant, as a result of the increased business received by the cleaning company from the restaurant.

According to the United States Citizenship and Immigration Services (USCIS), “a qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States, including a conditional resident, temporary resident, asylee, refugee, or a person residing in the United States under suspension of deportation.” An employee must work at least 35 working hours per week in order to satisfy the requirements.

Applying for the EB-5 program through the regional center route is beneficial to investors as they can rest assured that the regional center will satisfy the job creation requirements on their behalf, which translates into less hassle and burden for the investor.

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