EB-5 Direct Jobs

Outside a regional center, qualifying positions generally must be created directly by the NCE or qualifying wholly owned subsidiaries.

In a standalone EB-5 case, the job-creation requirement generally depends on qualifying direct employment created by the new commercial enterprise or a qualifying wholly owned subsidiary under the applicable rules. The petition should identify the employer, each qualifying position, expected or actual hiring dates, and how the positions relate to the enterprise's business plan. Payroll projections should be consistent with operating costs and anticipated revenue. At the removal-of-conditions stage, USCIS can examine actual employment evidence, so a standalone filing should avoid relying on headcount that belongs to unrelated companies, independent contractors, or entities outside the qualifying employment structure.

An employee of the NCE or JCE may be considered a directly created job.

The post-RIA Regional Center Program uses a different statutory framework for job counting. INA section 203(b)(5) provides that an employee of the new commercial enterprise or the job-creating entity may be considered a directly created job. This matters when an economic report separates direct and indirect employment or when the project relies on JCE payroll. The project documents should identify which entity is expected to employ the workers and ensure the job count is not duplicated across direct and modeled categories. The direct-job analysis should also remain consistent with the project business plan and the methodology submitted with Form I-956F.

The rule focuses on a qualifying full-time position rather than merely the number of workers appearing on payroll.

A qualifying direct EB-5 position must satisfy the applicable full-time employment standard. USCIS policy has long treated full-time employment as at least 35 working hours per week and focuses on the qualifying position rather than merely a named worker. A legitimate job-sharing arrangement can be treated differently from simply adding unrelated part-time positions together. Seasonal or intermittent work may also raise issues under the direct-job framework. The filing should therefore document the actual position, expected schedule, duration, and employer need, rather than relying only on payroll headcount or the number of individuals who may rotate through a position.

The investor, spouse, sons, daughters, and nonimmigrant workers do not count toward qualifying direct job creation.

Not every person on payroll is a qualifying employee for EB-5 job creation. The statute excludes the investor and the investor's spouse, sons, and daughters from the required job count, and the applicable rules also address immigration status and work authorization of employees. The petition should distinguish qualifying workers from owners, family members, contractors, and workers who do not satisfy the statutory definition. Employer records should support the position and the worker's relationship to the enterprise. Where projected hiring is used at the petition stage, the business plan should describe positions that can realistically become qualifying full-time jobs within the relevant period.

Standalone investors should not assume contractor headcount can satisfy the direct employment requirement.

Independent contractors are not ordinary direct employees for purposes of a standalone direct-job showing. A company should therefore avoid counting vendor personnel, consultants, outsourced staff, or workers employed by a separate service provider as if they were employees of the qualifying enterprise. In a regional center project, economic modeling may capture broader employment effects when permitted by the statutory framework, but that is a different analysis from claiming the workers as direct employees. Contracts and invoices can still be relevant to project activity, yet the job-creation methodology should classify the resulting employment consistently and avoid double counting the same economic activity.

• Payroll
• Forms I-9
• Forms W-2
• Payroll tax returns
• Job descriptions
• Hours records
• Hiring dates
• Organizational chart

Direct employment should be capable of verification through ordinary employer records. Useful evidence may include payroll reports, Forms I-9 and W-2, payroll tax filings, employee rosters, job descriptions, wage records, schedules, hiring and termination dates, organizational charts, and company tax records. The evidence should establish both the existence of qualifying full-time positions and the identity of the actual employer. At Form I-829, actual performance may be compared with earlier projections. If staffing changed, the record should explain how the enterprise nevertheless created the required number of qualifying positions and whether any job-sharing or replacement-worker issues affect the count.