There are three key terminology in the context of the EB-5 visa’s job creation requirement: employee, full-time, and qualifying employees.
An “employee” is defined as an individual who provides services or labor in exchange for compensation from an employer. “Full-time” employment is defined as an employee having a minimum of 35 working hours per week, and excludes independent contract work that meets or surpasses this minimal threshold. For EB-5 purposes, “qualifying employees” are U.S. workers. This category, however, excludes nonimmigrants such as E, H, L, or other temporary worker visa holders, and includes U.S. citizens, permanent residents, asylees, and refugees. Jobs occupied by neither EB-5 investors nor their relatives can be counted toward the employment opportunities created.
EB-5 investors are not required to hire 10 or more U.S. workers right at the time they initially invest their capital. Rather, they can provide U.S. Citizenship and Immigration Services (USCIS) a comprehensive business plan evidencing the need for at least 10 full-time employees “within a reasonable time” after investment. (More on “business plans” below.) This business plan is typically a part of an EB-5 investor’s Form I-526 petition. USCIS considers “reasonable time” to amount to within two years after applying for an EB-5.
Why two years? EB-5 investors must demonstrate the requisite job creation before their conditional green card, which lasts for two years and cannot be renewed, expires. In effect, USCIS dangles the carrot of permanent residency in front of EB-5 investors, who must demonstrate the creation of their 10 or more jobs before USCIS awards them approved Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status. Note that the jobs claimed must be maintained through the I-829 adjudication process.
In order to prove that their investment has led, or will lead, to 10 full-time employment opportunities for qualifying U.S. workers, immigrant investors must submit the following evidence to USCIS:
If the employees have already been at the new commercial enterprise (NCE) created by the investment: Documentation consisting relevant tax records, i.e. Form I-9, Employment Eligibility Verification, or similar paperwork for the 10 employees; or
If the NCE has yet to support 10 full-time U.S. workers: A comprehensive business plan showing that, in light of the nature and projected size of the NCE, a need for no fewer than 10 qualifying employees will result within two years’ time; said plan must include approximate dates.