EB-5 Qualifying Employees and Full-Time Employment

Qualifying workers include U.S. citizens, U.S. nationals, lawful permanent residents, and other immigrants lawfully authorized to work in the United States.

A qualifying direct EB-5 employee is not simply any person on payroll. The statute recognizes US citizens, US nationals, lawful permanent residents, and other immigrants lawfully authorized to work in the United States, subject to the specific exclusions in the EB-5 definition. The position must also satisfy the full-time requirement where direct job creation is being used. Employment records should therefore establish both the existence of the position and the worker's qualifying status. The analysis is especially important in standalone cases because those petitions generally rely on direct employment rather than the broader indirect-job methodology available through the regional center program.

INA §203(b)(5) excludes the investor and the investor's spouse, sons, and daughters from the qualifying worker count.

The investor, the investor's spouse, and the investor's sons and daughters are excluded from the qualifying employee count. Their work for the enterprise can still be economically important, but it does not satisfy the required EB-5 job total. The same distinction should be reflected consistently in the business plan, payroll analysis, and later Form I-829 evidence. If a family member appears on payroll, the filing should not include that person in the ten qualifying positions. A clear employee roster that separates excluded persons from qualifying workers can prevent USCIS from having to reconstruct the count from raw payroll records.

A worker in a temporary nonimmigrant classification should not be assumed to count toward direct EB-5 job creation.

Workers employed in temporary nonimmigrant classifications are not included in the statutory qualifying employee definition for direct EB-5 job creation. A company may lawfully employ H-1B, L-1, E, F-1 practical-training, or other temporary workers, but their presence should not automatically be credited toward the investor's ten required direct jobs. The petition should identify which positions are filled by qualifying workers and which are not. Where workforce status changes over time, later evidence should be updated accordingly. The safest job count relies on positions and workers that clearly satisfy the governing EB-5 definition rather than assuming every work-authorized employee qualifies.

The EB-5 full-time standard focuses on the position.

A qualifying job-sharing arrangement may count where employees share one full-time position meeting the hourly requirement.

For EB-5 purposes, full-time employment means a position requiring at least 35 hours of service per week. The statute focuses on the position, not merely an employee's aggregate hours over an irregular schedule. A genuine job-sharing arrangement can qualify when two or more workers share one full-time position that meets the weekly requirement, but ordinary separate part-time jobs are treated differently. The business plan and employment evidence should describe expected hours, duties, and staffing structure clearly. At Form I-829, payroll and scheduling records can corroborate that the claimed qualifying positions actually existed at the required full-time level.

Multiple independent part-time positions generally cannot be combined merely because their total weekly hours exceed 35.

Separate part-time positions cannot simply be added together to create a full-time EB-5 job because the statutory standard concerns a full-time position requiring at least 35 hours per week. This is different from a qualifying job-sharing arrangement, where multiple employees share the responsibilities and hours of one full-time position. The distinction should be evident from job descriptions, schedules, payroll records, and the employer's staffing structure. If a business relies heavily on part-time labor, the EB-5 plan should identify which positions independently satisfy the full-time requirement and should avoid overstating employment merely because total payroll hours appear sufficient in the aggregate.

• Payroll
• Forms I-9
• Forms W-2
• Payroll tax filings
• Job descriptions
• Hours records
• Hiring dates
• Employee immigration documentation where appropriate

Direct job evidence should prove both the position and the worker. Useful records can include payroll registers, Forms I-9, Forms W-2, payroll tax filings, job descriptions, schedules, hire dates, termination records, and documents showing the worker's qualifying immigration or citizenship category where appropriate. The record should also identify excluded family members, contractors, and temporary nonimmigrant workers so they are not mistakenly counted. A position-by-position table can show title, hours, employee name, qualifying status, start date, and supporting exhibits. That structure makes the job count easier to verify at both petition and Form I-829 stages.