It’s often said that an EB-5 investment must create 10-full time jobs for U.S. citizens or lawful permanent residents. But that statement is only partially true, and overlooks many of the nuances of proving adequate and sufficient job creation in the two types of EB-5 filings, direct EB-5 petitions and regional center petitions. Further, critics of the EB-5 program allege that jobs are not actually created and subject to fraud. Several of the comments made during the Feb. 3, 2016, Senate hearing evidenced some confusion as to exactly how EB-5 job creation is to be documented under the law and how it is proven in practice.
It is worth reviewing the law and dispelling some myths. How does EB-5 job creation actually work in the regional center and in the non-regional center “direct” context?
Applicable INA and Regulatory Provisions
Let’s start with the hard law. INA § 203(b)(5)(A)(ii) provides that the investor’s 10 full-time jobs must be created for:
United States citizens or aliens lawfully admitted for permanent residence or other immigrants lawfully authorized to be employed in the United States (other than the immigrant and the immigrant’s spouse, sons, or daughters).