USCIS administers the EB-5 Immigrant Investor Program, which was created by Congress in 1990 to stimulate the U.S. economy through job creation and capital investment by foreign investors. Under a program first enacted as a pilot in 1992 and regularly reauthorized since then, investors may qualify for EB-5 classification by investing through regional centers designated by USCIS based on proposals for promoting economic growth.
On March 15, 2022, President Biden signed the EB-5 Reform and Integrity Act as part of the Consolidated Appropriations Act, 2022, which created new requirements for the EB-5 immigrant visa category and the Regional Center Program. Immigrant visas are authorized under the Regional Center Program through September 30, 2027.
The primary condition is that 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. For a new commercial enterprise not located within a regional center, the new commercial enterprise must directly create full-time jobs to be counted. This means that the new commercial enterprise (or its wholly owned subsidiaries) must itself be the employer of the qualifying employees.
For a new commercial enterprise located within a regional center, the new commercial enterprise can directly or indirectly create full-time positions. Up to 90% of the job creation requirement for regional center investors may be met using indirect jobs.
Here is how USCIS distinguishes between direct and indirect jobs – Direct jobs establish an employer-employee relationship between the new commercial enterprise and the persons it employs. Indirect jobs are held outside of the new commercial enterprise but are created as a result of the new commercial enterprise.
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 or a temporary resident. This definition does not include immigrant investors; their spouses, sons, or daughters; or any noncitizen in any nonimmigrant status (such as an H-1B nonimmigrant) 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 regional center program, full-time employment also means employment of a qualifying employee in a position that has been created indirectly and requires a minimum of 35 working hours per week.
A job-sharing arrangement where 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.
Jobs that are intermittent, temporary, seasonal, or transient do not qualify as permanent full-time jobs. However, jobs that are expected to last at least two years are generally not considered intermittent, temporary, seasonal, or transient.
A troubled business has been in existence for at least two years and has incurred a net loss during the 12- or 24-month period before the priority date on the immigrant investor’s Form I-526. The loss for this period must be at least 20% of the troubled business’ net worth before the loss. When determining whether the troubled business has been in existence for two years, USCIS will consider successors in interest to the troubled business when evaluating whether they have been in existence for the same period as the business they succeeded.
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, or will be, no less than the pre-investment level for at least two years.