EB5 Employment Creation and USCIS Criteria
Meeting you EB5 employment creation quota is crucial in receiving your EB-5 green card. Regardless of whether you invest $500,000 or one million dollars, you must create 10 full-time jobs for US workers.
Full-Time Workers Defined for EB5 Employment Creation Requirements
The jobs you create must provide at least 30 hours of work per week for each position to be considered full-time. These positions must exist for at least two years. The required two-year duration applies to the position, rather than to the individual hired. For example, if you create construction work through your EB-5 investment, you must provide construction positions that last at least two years, but can be occupied by more than one individual during that time. Positions that do not provide steady work for two years do not qualify. Similarly, while part-time positions do not count towards your EB5 employment creation quota, it is permissible for multiple employees to share a single full-time job.
If, due to circumstances beyond your control, one of the jobs becomes temporarily vacant during the two year period, you will not be disqualified from the EB-5 investor visa program as long as you make serious efforts to fill the position as quickly as possible.
Jobs you provide for family members or individuals with non-immigrant visas do not count towards your EB5 employment creation quota of 10 jobs. Similarly, only new jobs, and not relocated jobs, qualify. Discuss your EB5 employment creation options with your immigration lawyer to determine the best strategy for your EB5 investment.
Definition of US Workers for EB5 Immigrant Visa Program
USCIS determines who qualifies as a US worker. This category is not limited to American citizens, and generally includes most categories of individuals who have permission to live in the US permanently, or even semi-permanently.
Examples of non-US citizens who qualify as US workers include individuals whose deportation has been suspended, or whose removal from the US has been cancelled. US workers also include refugees, temporary residents, individuals who have been granted asylum in America from their home countries, and other types of permanent residents, with or without conditions.
Individuals with non-immigrant visas who are not permitted to remain in the US permanently, as well as the investor’s family, do not qualify as US workers and cannot be employed towards the 10 jobs required by the EB5 investor visa program.
Troubled Business Investment and Exceptions to EB5 Job Creation Criteria
There is one exception to EB5 employment creation requirements. If you make your EB-5 investment in 
a business which is “troubled,” or struggling, you are exempt from creating 10 jobs for two years.
A business that qualifies as “troubled” must have existed for at least two years, and lost 20 percent or more of its original net worth prior to your investment. If you invest in a business that meets these criteria, you must maintain the number of existing jobs at the time of your investment for a period of two years. You will not be required to create an additional 10 jobs. However, if more than one EB-5 green card applicant invests in a single troubled business, you must maintain at least 10 jobs for each applicant.
Your immigration lawyer will help you provide a comprehensive business plan for a troubled business when you apply for your EB5 green card, as well as documentation of how you plan to maintain all current jobs.
If the troubled business in which you invest goes under within your two-year investment period, you may become ineligible for an unconditional EB-5 green card. It is essential that you consult your immigration lawyer, as well as an expert business analyst and attorney, before investing in a struggling business, to avoid losing money or failing to meet EB5 employment creation requirements.
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