EB-5 Job Creation and Full-Time Employees

In a Memorandum dated June 17, 2009, Donald Neufeld, the Acting Associate Director for Domestic Operations, has provided some guidance on the employment-based fifth preference (EB-5) green card category reserved for entrepreneurs willing to invest a substantial capital into the U.S. and create at least 10 full-time jobs.

About EB-5

Section 203(b)(5) of the Immigration and Nationality Act creates a class of immigrant visas, EB-5, for individuals who invest a specified amount of capital in the U.S. economy and who will “create full-time employment for not fewer than 10″ qualified employees.   Initial EB-5 status has conditions which condition must be removed at the end of a two-year period by filing an application to remove conditional residency and by showing that the applicant has continued to meet section 203(b)(5) requirements.

The Neufeld Memorandum and Job Creation

The Neufeld Memorandum directs the adjudicators that a specific business plan be required as part of each EB-5 application which business plan must provide accounting of the required number of jobs created within the two-year period of conditional residency.  However, the adjudicators are given some flexibility as to  the timing of job creation.

For purposes of determining the period in which job creation is counted, USCIS has indicated that such period begins six (6) months after the adjudication of Form I-526 and the business plan filed in support of Form I-526 must make sure that job creation covers this 2-year period commencing 6 months following adjudication.

The Neufeld Memorandum specifically indicates that certain construction jobs can be included in the count of 10 full-time jobs required by EB-5.  Section 203(b)(5) requires that 10 full-time jobs be created by the proposed venture.  Full-time employment is defined as “employment in a position that requires at least 35 hours of service per week at any time, regardless of who fills the position” (emphasis added).  USCIS has advised previously that intermittent, temporary or seasonal jobs do not qualify for “full-time jobs.” However, the Neufeld Memorandum specifically indicates that some construction-related jobs should qualify to be considered full-time jobs and should therefore be counted.  The focus on the inquiry, according to the Neufeld Memorandum, should be whether the position created is continuous full-time employment rather than intermittend, seasonal job.  This shift in focus allows some full-time construction jobs, generated from the foreign entrepreneur’s investment, to be counted towards the 10 jobs requirement.

An additional clarification by the Neufeld Memorandum — independent contractors and multiple part-time jobs cannot be used and be counted towards the jobs requirement.