There are certain requirements for obtaining an EB-5 Visa as an avenue for immigration, one being that the investment must show that it is a driving force for job creation. The investor’s new commercial enterprise must be able to prove it has created at least 10 full-time positions for qualifying employees. Of course, under the job creation requirement, there are some specifications to be aware of.
If Project is Sponsored by a Regional Center
For a new commercial enterprise that is affiliated with a regional center, the qualifying employment positions are allowed to be made by the new commercial enterprise itself or indirectly from it. Direct jobs would be full-time positions establishing a relationship between the new commercial enterprise and the person employed as employer-employee. Indirect jobs are those that have been created because of the new commercial enterprise but are still held outside of it. Job creation requirements are met in the Regional Center context by conducting economic analysis of the impact of the overall investment within a designated area.
If Investor Uses Direct Investment Rather than a Regional Center
If the investor invests directly in a new commercial enterprise is not affiliated with a regional center, the 10 full-time positions need to be created by the actual new commercial enterprise. Either the enterprise, or its wholly owned subsidiaries can be the employer in this case to be counted. But, the investor must establish that he or she has in fact created ten new jobs for American persons who are not family members of the investor. This is usually accomplished by providing copies of W-2s, time sheets, records related to payroll taxes paid and similar documentation.
What qualifies as an employee?
The job creation requirements are for obtaining an EB-5 visa are set forth above, but, exactly what constitutes an employee under the law? A qualifying employee must be an existing U.S. citizen or lawful permanent residence, or an individual who is otherwise authorized to work as an immigrant or alien within the United States. This includes conditional or temporary residence, refugee status, an asylee, or even a person living within the U.S. under suspension of deportation if asserted status includes authorization to work. It’s important to note that the investor themselves or their spouse or children are not able to count as employees, along with any foreign national in a nonimmigrant status or who isn’t authorized to work in the U.S.
The employees must work at least 35 hours per week to qualify as full-time. For the commercial enterprises within the regional center program, the full-time requirement of a qualifying employee that may be created indirectly also requires 35 hours minimum of work per week, but the determination is made based upon an acceptable economic model, rather than by counting employees.
Under full-time employee regulations, using job sharing where two or more employees share one full-time position may also count as a single full-time employee. However, this is only fulfilled if the two or more part-time employees reach the 35 hour requirement each. Combining their hours total for the week reaching 35 or more hours, but not reaching 35 hours individually will not count.
The 10 employee requirement for full-time, U.S. jobs must also be defined as permanent employment. This means that intermittent, temporary, or seasonal employment does not qualify. However, if the “temporary” job is expected to last at least 2 full years, they may generally be regarded as permanent positions achieving the requirement.