Job Creation Requirements of EB-5

An EB-5 investor must invest the required amount of capital in a new commercial enterprise that will create full-time positions for at least 10 qualifying​ employees.

Qualifying Employees

A qualifying employee is a U.S. citizen, lawful permanent resident, or other immigrant authorized to work in the United States including, but not limited to, a conditional resident, a temporary resident, an asylee, a refugee, or a person residing in the United States under suspension of deportation. This definition does not include the immigrant investor; his or her spouse, sons, or daughters; or any foreign national in any non-immigrant status (such as an H1-B non-immigrant) or who is not authorized to work in the United States.

Full-time Employment

Full-time employment means employment of a qualifying employee by the new commercial enterprise in a position that requires a minimum of 35 working hours per week. In the case of the regional center program, “full-time employment” also means employment of a qualifying employee in a position that has been created indirectly that requires a minimum of 35 working hours per week.

Job-sharing Arrangement

A job-sharing arrangement whereby two or more qualifying employees share a full-time position will count as full-time employment provided the hourly requirement per week is met. This definition does not include combinations of part-time positions even if, when combined, the positions meet the hourly requirement per week.

Troubled Business

A troubled business is a business 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.

In the case of a troubled business, the EB-5 investor may rely on job maintenance.

The investor ​must show that the number of existing employees is being, or will be,​ maintained at no less than the pre-investment level for a period of at least ​2​ ​years.​

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