EB-5 job creation requirements clarified as renewal approaches

USCIS notes "transient or seasonal" jobs qualify so long as full-time

Aug.August 12, 2015 03:30 PM

U.S. Citizenship and Immigration Services released a draft guidance on the EB-5 foreign investors visa program Monday, clarifying the program’s job creation requirement as it faces renewal in Congress this fall.

EB-5 allows foreign investors to commit as little as $500,000 to a U.S. project and earn a green card, their principal back and typically a minimal interest on the investment after two years, provided it reaches a job creation requirement.

New York real estate developers have counted on EB-5 funding increasingly in recent years, and foreign investment gained through the program has helped fund developments from the likes of Related Cos. and Witkoff.

A foreign national’s investment must create 10 jobs to be eligible for an EB-5 visa, though how such jobs are counted has been a topic of debate, according to Law360. The USCIS draft guidance clarified the requirements, noting that “intermittent, temporary, seasonal or transient” employment in industries like construction and tourism should not be excluded “simply because they fall into such industries.”

Rather, the agency’s requirements would continue to be based “on whether the position, as described in the petition, is continuous full-time employment,” it said — such as jobs that employ laborers in a construction project for a minimum of 35 hours per week.

USCIS noted that it will “continue to require evidence verifying” that investment funds for a project were released and “sustained in the new commercial enterprise such that the capital was ‘at risk’ throughout the sustainment period.”

While created in the early 1990s, the EB-5 program was little used until the economic downturn at the end of the 2000s. The program’s 10,000-visa annual quota was met for the first time in its history last year, with a large majority of those investors coming from China.

The program faces renewal this fall in Congress, which is widely expected to renew the program while potentially altering the minimum cap on investment and the annual visa quota. [Law360] — Rey Mashayekhi

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