Meeting the Job Creation requirement

The EB-5 program is fundamentally a program that incentivizes foreign investment to create U.S. jobs. Regardless of the investment path, each individual EB-5 investor’s capital contribution must result in the creation of 10, full-time, qualifying jobs for work-authorized residents. As such, it is important to accurately project how many jobs your business or project will create, and the budget and pro forma and critical in supporting job creation estimates.

Job creation in Direct EB-5

In the case of a Direct EB-5 project, job creation is an estimate based on the needs of the project or business, but these estimates must be supported by the financial projections. It is important that projections are conservative and are substantiated by either a feasibility study, market analysis, or an existing pipeline of contracts for new business. It does all parties a disservice to overestimate the projected performance of a business, and can jeopardize more than the margin of return on investment. If the required jobs are not created, EB-5 investors lose their eligibility, effectively negating what can be years of time invested in the immigration process and in many cases eliminating the opportunity for a green card entirely.

Job creation in regional center projects

For regional center projects, economic models are used to determine the total number of direct, indirect, and induced jobs created. Indirect jobs in this situation include jobs which are “collaterally” created as a result of the project’s construction. These jobs are not overseen by the commercial enterprise, but rather outsourced for specific tasks (such as concrete pourers, architects, etc). Induced jobs in this context constitute the “spinoff” jobs created by the economic stimulus brought to the area by the direct/indirect job creation or the creation of a new residential/commercial development (such as a business which opens next door to a completed EB-5 development). For RC projects, indirect and induced jobs can only constitute 90% of jobs required to fulfill an investor’s job creation requirement.

The project budget and pro forma are the “inputs” for these models. A minimum of 10% of all jobs created must be direct jobs (or 25%, in the case that the project lasts less than 24 months), but outside of that, both indirect and induced jobs can be applied to meet the minimum job creation requirements for any investor. It is recommended that project developers work with an EB-5 economist to develop an economic impact analysis for this purpose. The results of the analysis are not only required by USCIS for regional center project filings, but play an important role in project development by defining how many investors a project can support, and thus how much capital can be raised through the program. 

The jobs created MUST be new, and must be created and filled within two years of an investor’s I-526E petition being filed. The investor will be asked to demonstrate how many jobs were created in accordance with the project’s business plan when filing their I-829 petition.

For those trying to figure out whether EB-5 is a viable option for their particular capital raise, an economist can often be approached in the early stages to calculate a rough calculation of direct and indirect jobs based on rough project parameters.

Job Creation Cushion

For both direct and regional center projects, it is advisable to have a “job creation cushion”, meaning that the projected number of jobs exceeds more than ten jobs per investor. Building in a buffer helps to ensure that an investor still meets the job creation requirements, even if fewer jobs were created than were projected in the business plan, or if actual expenditure and revenue is lower than what the original economic analysis used to calculate outputs. This is particularly important for regional center projects that raise capital from multiple investors. 

A typical cushion is 20%-30% (at least 12-13 new jobs per investor), depending on the project. This allows for a margin of error in forecasting and provides added security to investors, especially because job creation is typically allocated to investors on a “first in” basis. 

For example, if 10 immigrants invest into an offering and only 90 jobs are created, the first nine investors in the project will use the 90 jobs to fulfill their job creation requirements. However, the last investor to receive their conditional green card may get an immigration petition denial because the project did not create the 100 jobs required. To prevent this and protect your reputation, buffering the total jobs created is always best practice.