EB-5 Construction Jobs and the Two-Year Rule

The special rule applies when the construction activity producing the estimated jobs lasts less than two years.

Post-RIA regional center cases contain a special construction rule when the construction activity producing the claimed jobs lasts less than two years. Duration therefore affects how modeled construction employment can be credited. The project should identify the relevant construction period using objective records rather than an unsupported estimate. Permits, notices to proceed, contractor schedules, draw records, substantial-completion documents, and other contemporaneous evidence can help establish when qualifying construction activity began and ended. The economic analysis should use a construction period that matches the project record and should explain any material difference from the original schedule.

This is stricter than the ordinary 90 percent indirect-job limit for post-RIA regional center cases.

For construction activity lasting less than two years, the statute limits the number of indirectly estimated construction jobs that may be credited toward the regional center investor's job-creation requirement. USCIS has explained that such investors may claim only up to 75 percent of the required jobs from indirect construction employment, rather than the ordinary 90 percent indirect-job ceiling. The economic report should therefore identify which jobs are characterized as indirect, how the applicable percentage limit is applied, and whether enough qualifying employment remains after the statutory limitation to support the participating investors.

Where direct jobs are estimated through a valid methodology, the count is multiplied by the fraction of the two-year period that the construction activity lasts.

The RIA also contains a special rule for model-derived direct construction jobs when the construction activity lasts less than two years. USCIS has explained that estimated direct construction employment is prorated based on the fraction of the two-year period that the construction activity actually lasts. The report should state the duration used, the direct-job estimate before proration, and the resulting credited amount. If the project schedule changes materially, the job analysis should be revisited because a shorter or longer actual construction period can alter the number of direct construction jobs that may be credited.

Permits, contracts, budgets, draw schedules, construction timelines, and actual project records should corroborate the claimed duration.

The construction schedule is not merely a project-management exhibit when job creation depends on construction duration. It can determine which statutory job-counting rule applies and how many modeled jobs are creditable. The record should reconcile the business plan, contractor schedule, building permits, draw schedule, financing timeline, and actual progress reports. Extensions, pauses, phased construction, redesigns, or delayed notices to proceed should be explained where they affect the claimed period of qualifying activity. At Form I-829, actual evidence should replace or update assumptions that were reasonable only at the investor-petition stage.

The economic report should identify which expenditures are included and avoid costs that do not support the claimed job impact.

Economic modeling commonly uses qualifying construction expenditures as an input, so the project should distinguish eligible costs from amounts that do not support the claimed job impact. The economic report should identify the expenditure categories used and reconcile them with the development budget and actual accounting records. Invoices, draw requests, lender reports, contractor applications for payment, bank records, and cost ledgers may become important at Form I-829. If projected expenditures were reduced, shifted, or never incurred, the job calculation may need to be updated so that credited employment reflects qualifying project activity rather than the original budget alone.

• Construction start date
• Completion date
• Eligible expenditures
• Invoices
• Draw records
• Economic report
• Revised construction schedule
• Job calculation

At Form I-829, USCIS can examine whether the construction activity and expenditures supporting the economic model actually occurred. The record should therefore document construction start and completion dates, eligible expenditures, draw records, invoices, project changes, and any revised economic analysis. A project that finished on a different schedule from the original business plan should explain how the actual duration affects the 75 percent indirect-job limitation and any proration of modeled direct construction jobs. The filing should also show how jobs were allocated among investors and confirm that the same economic activity was not counted more than once.