The heart of the EB-5 program, in a nutshell, however, lies in the job creation requirement. This defines the mission of the EB-5 program to work for the benefit of the labor market in the country while offering individual investor and their close family members an unmediated way to get a green card.
The following discussion takes the reader through a deep dive into who constitutes a ‘qualifying employee’ under the EB-5 program, with a deliberate focus on beefing up the domestic workforce.
Qualifying employees are broadly defined to include U.S. citizens, permanent residents, or other immigrants legally authorized to work in the United States, such as asylees or refugees. Consequently, and most importantly, the definition explicitly excludes the investor and his immediate family, thus ensuring that the benefits of the programmer go beyond just the investors to enter the United States labor market.
In other words, this inclusive but exclusive criterion only serves the purpose of underlining the already-mentioned intent of the program to create genuine job opportunities for the American workforce.
The requirement for jobs to be full-time, with a requisite minimum of 35 working hours every week, leaves no doubt that the job opportunity alluded to in the EB-5 program referred to should be meaningful.
The program does, however, allow for job-sharing arrangements such that two or more qualifying employees could share one full-time position, adding a layer of flexibility while still accommodating the different employment practices at participating firms to this requirement. This flexibility is important in any industry where full-time jobs are not usually the norm or when job sharing can result in a more efficient or effective performance of the work.
Understanding the timing for the establishment of these jobs under the EB-5 visa process is important to investors. The process is delineated into two main stages: the I-526 stage, where the investment makes an application for a conditional residency based on his proposed investment, and the I-829, where the investment must prove he has made the required job creation to remove conditions on his residency.
This staged request allows investors to make their investments and create job plans accordingly, with clear windows in between where the investors can gain a conditional state without the need to show the fulfillment of the job creation commitments.
Two investment pathways exist that are very distinct, facilitating immigrants to qualify under the EB-5 program – direct investment or through a regional center. Usually, this provides the direction of investments, which engages the investor in setting up, expanding, or joining a business and providing capital injection.
On the other side, an investment in a regional center may contribute to investors even in the job creation and economic growth within certain regions by being part of projects made by entities specialized in that area. The distinction is important as it influences how job creations are computed and credited, with regional center investments offering the advantage of counting not only direct but also indirect and induced jobs towards the investor’s requirement.
Indeed, to demonstrate job creation, concrete proof is needed, especially for direct investments such as I-9 employment eligibility verification forms proving that the new commercial enterprise has directly created at least ten full-time positions. A methodology on job creation in regional center investments, on the other hand, depicts a wide methodology since it is allowed to incorporate economic models and forecasts to establish not only direct and indirect jobs but also induced jobs. This distinction emphasizes the flexibility of the program in recognizing various forms of economic contributions while keeping its central purpose—job creation—in focus.
The issue of allowing existing jobs to be counted towards the EB-5 job creation requirement throws some nuances into the choice framework. Overall, the addition of new jobs is required in the program. However, investments into a troubled business that will keep existing jobs may be eligible, providing a bail-out for a struggling business and helping keep employment levels up. This type of exception tells two things about the program: first, its adaptability and, ultimately, a bigger economic goal for the jobs it facilitates to be used by other parties beyond the company providing those jobs.
It is an uphill task for the investors seeking residency through the EB-5 visa creation requirements since there are complexities to be navigated surrounding immigration law. Its nuanced definitions of qualifying employees, specific criteria for what constitutes a full-time position, and detailed guidelines for proving job creation offer not just structure but also flexibility to the framework of foreign investment and job creation into the U.S. economy. Understanding these requirements is critical to maximizing the EB-5 visa for mutual benefit aligning investors’ residency goals with the program’s economic objectives.