Specializing in EB-5 Visas
for permanent U.S. residency for foreign investors
The EB-5 investment of the investor must create (or preserve) at least 10 full-time jobs for qualifying U.S. workers within two years (or under certain circumstances, within a reasonable time after the two-year period) of the immigrant investor’s admission to the United States as a Conditional Permanent Resident.
There are two types of jobs that qualify for EB-5 investments: direct jobs or indirect jobs.
Are actual identifiable jobs for qualified employees that are hired directly by the new commercial enterprise into which the EB-5 investor has directly invested his or her capital. These are positions where the employee’s salary will be paid by the new commercial enterprise, which will engage in annual tax reporting and tax withholding of salary for each employee. Independent contractors are not qualified as “direct jobs” under the EB-5 program.
Are those jobs shown to have been created collaterally or as a result of capital invested in a commercial enterprise affiliated with a regional center by an EB-5 investor. A foreign investor may only use the indirect job calculation – but only if the investment is sponsored by a USCIS-approved Regional Center. If the new commercial enterprise and its capital investment project are not sponsored by a Regional Center, the EB-5 investor cannot count indirect jobs.
Note: Investors may only be credited with preserving jobs in a troubled business. A troubled business is an enterprise 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. For purposes of determining whether the troubled business has been in existence for two years, successors in interest to the troubled business will be deemed to have been in existence for the same period of time as the business they succeeded.
A qualified employee is a U.S. citizen, permanent resident or other immigrant authorized to work in the United States. The individual may be a conditional 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 nonimmigrant status (such as an H-1B visa holder) or who is not authorized to work in the United States.
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 Immigrant Investor Pilot Program, "full-time employment" also means employment of a qualifying employee in a position that has been created indirectly from investments associated with the Pilot Program.
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 or full-time equivalents even if, when combined, the positions meet the hourly requirement per week. The position must be permanent, full-time and constant. The two qualified employees sharing the job must be permanent and share the associated benefits normally related to any permanent, full-time position, including payment of both workman’s compensation and unemployment premiums for the position by the employer.
I.A. Donoso & Associates LLC is delighted to assist you with your review and analysis of EB-5 investment projects or regarding your eligibility under EB-5 category. Please feel free to schedule a consultation by calling (301) 276-0653, or by completing our online consultation form.