EB5 Visa: What Types of Jobs must be Created?

The simple answer to this question is ten full-time jobs. There are many complexities however related to what types of jobs end up satisfying the immigration service.

This issue begins at the initial I526 filing stages when an investor must provide the immigration service with a comprehensive business plan to evidence and convince the USCIS that the enterprise will be able to generate at least ten full-time jobs within the 2 year conditional green card period or within a reasonable time after that (normal 6 additional months).

As provided by the immigration regulations at 8 CFR 204.6(j)(4)(i)(B), the following is needed with the initial green card application, a “comprehensive business plan showing that, due to the nature and projected size of the new commercial enterprise, the need for not fewer than ten (10) qualifying employees will result, including approximate dates, within the next two years, and when each employee will be hired.”

The two year period that the USCIS will consider is the two years following the approval of the Investors I-526 application as is verified in the Adjudicators Field Manual used by the USCIS.

It is the position that is created that is the most important consideration and not the individual filing the position. Accordingly, it needs to be show at the I-526 initial filing stage and then verified that it actually occurred at the I-829 (removal of conditions) stage that at leads ten full-time positions were created. It need not be evidences that the same ten people necessarily held the position over a period of time.

As provided by the USCIS in a 2009 memo, “For example, if a petition reasonably describes the need for general laborers in a construction project that is expected to last several years and would require a minimum of 35 hours per week over the course of that project, the positions would meet the full-time employment requirement.” The USCIS does not want to see seasonal or intermittent positions however and this is where some construction related jobs such as the need for intermittent electrician  services could be problematic.

Constructions jobs are one areas of EB5 job creation that normally leads to the most complex analysis due to the need of being able to prove that the positions are needed for a two year period.

Article categories: Employment Based Green Cards, Investors/EB-5

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