Job Creation Requirement: How EB-5 Creates 10 Jobs

The EB-5 Immigrant Investor Program mandates the creation or preservation of at least ten full-time jobs for qualifying U.S. workers for every capital investment made. This requirement is central to the program's goal of stimulating the U.S. economy. Understanding how these ten jobs are counted is crucial for successful petitioning.

Defining a Full-Time Job

The definition of a full-time position under EB-5 regulations is specific:

• The position must require a minimum of 35 hours of work per week.
• The position must be permanent, not temporary or seasonal.
• The position must be held by a qualifying U.S. worker.

These positions must be established within the required job creation period, typically two years following the Regional Center's approval of the I-526 petition.

Methods of Job Counting

The USCIS allows for three distinct methodologies to demonstrate that ten jobs have been created or are projected to be created:

1. Direct Job Creation: These are jobs hired directly by the New Commercial Enterprise (NCE) that received the EB-5 investment. Examples include administrative staff, construction workers employed directly by the NCE, and manufacturing employees.
2. Indirect Job Creation: These jobs are created in companies supplying goods or services to the NCE. This method is primarily utilized when the investment is made through a qualifying Regional Center.
3. Induced Job Creation: These are jobs created in the local economy as a result of the increased household income generated by the direct and indirect employees.

Regional Centers often rely on economic impact studies, typically utilizing models like the RIMS II (Regional Input-Output Modeling System), to project indirect and induced job counts, as direct counting alone can be insufficient for large projects.

Job Preservation vs. Job Creation (Targeted Employment Areas)

In certain circumstances, particularly within Targeted Employment Areas (TEAs), the EB-5 program allows for job preservation rather than strict job creation. This applies mainly to troubled businesses.

A troubled business is one that has experienced a net loss of at least 20% of its value of gross assets during the 12-month or 24-month period preceding the investor’s investment.

For a troubled business, the requirement is met if the investment results in the maintenance of at least ten existing jobs for two years, rather than the creation of ten new ones. This is a critical distinction for investors focusing on restructuring existing enterprises.

Verification and Compliance

Compliance with the ten-job rule is verified at the I-829 petition stage. The petition must demonstrate that the required number of jobs were either created or demonstrably in the process of being created according to the approved business plan. Failure to meet this metric is the most common reason for denial at the final stage.

The calculation must adhere strictly to USCIS guidelines. For instance, the use of contract labor must be carefully documented to ensure those individuals are counted correctly, if at all, under the direct job methodology.

The minimum investment required to trigger this job creation is currently:

• $1,050,000 (Standard Investment Amount)
• $800,000 (Targeted Employment Area or Infrastructure Project)

Conclusion

The mandate to create ten jobs per investor is the economic engine of the EB-5 program. Investors and Regional Centers must meticulously plan and document job creation, utilizing a combination of direct, indirect, and induced job counting methods, especially when leveraging the economic modeling provided through a Regional Center structure. Robust documentation proving compliance with this metric is non-negotiable for the investor to ultimately secure permanent residency.