If you are a foreign investor planning to use the EB-5 program to fund a small business, the job creation requirement is likely your biggest hurdle. You must create at least 10 full-time jobs for qualifying U.S. workers, and the rules are strict. This guide explains exactly what counts, how to structure your small business to meet the requirement, and what to do if you are investing in an existing or troubled business.
Which of the following statements about EB-5 job creation is true?
Select one answer.
What the law requires
The EB-5 program requires your investment to create at least 10 full-time jobs for U.S. citizens, nationals, or lawful permanent residents. Each job must involve at least 35 hours per week and be permanent, not seasonal or intermittent. The jobs must exist within two years of your investment, though in some cases USCIS may allow a reasonable period beyond that. This requirement applies whether you invest directly in your own business or through a regional center, but the counting rules differ.
For a direct EB-5 investment—which is what most small business owners use—only jobs created directly by your commercial enterprise count. You cannot count jobs created indirectly or induced by your business's spending. This is a key difference from regional center investments, where indirect job creation can be counted. For a small business, this means you need a clear plan to hire at least 10 W-2 employees who each work at least 35 hours per week.
Counting jobs in a small business
When you invest in a new commercial enterprise (NCE), the jobs you create must be new positions. If you buy an existing business, you cannot count the jobs that already exist unless you expand the workforce. For example, if the business has 5 employees, your investment must create 10 additional jobs, bringing the total to 15. This is a common mistake that leads to denials.
Here is a checklist to help you plan your job creation:
- Identify qualifying employees: Only U.S. citizens, nationals, or lawful permanent residents count. You cannot count yourself, your spouse, or dependent family members.
- Ensure full-time status: Each job must require at least 35 hours per week. Two part-time jobs do not equal one full-time job.
- Document permanence: The job must be permanent, not seasonal or temporary. A construction job that lasts only a few months may not qualify unless it is part of an ongoing operation.
- Plan for timing: You must create the jobs within two years of your investment, or within a reasonable period if you can show it is justified.
- Keep records: Maintain payroll records, tax filings, and employment verification for each qualifying employee. You will need this evidence when you file Form I-829 to remove conditions on your green card.
Investing in a troubled business
There is an exception to the job creation rule for troubled businesses. If you invest in a business that has been in existence for at least two years and has lost at least 20% of its net worth or number of employees due to financial distress, you may be able to preserve existing jobs instead of creating new ones. In that case, you must maintain the current number of jobs, not necessarily create 10 new ones. However, proving that a business qualifies as troubled is difficult, and USCIS scrutinizes these cases closely. Most experts recommend avoiding troubled business investments unless you have strong legal guidance.
Practical steps for small business owners
If you are starting a new small business, the most straightforward path is to create a business plan that clearly shows how you will hire 10 full-time employees. For example, a restaurant, a logistics company, or a professional services firm can often meet this requirement if the business model supports a large workforce. You should also consider whether your business is located in a Targeted Employment Area (TEA), which can lower your minimum investment from $1,050,000 to $800,000. Rural areas and areas with high unemployment qualify as TEAs.
Before you invest, work with an experienced EB-5 attorney to review your business plan and job creation projections. An attorney can help you structure your investment to avoid common pitfalls, such as counting ineligible employees or failing to document job creation properly. The stakes are high: if you do not meet the job creation requirement, you may not be able to remove the conditions on your green card, and your path to permanent residency could be jeopardized.
How the Featured Expert Can Help
Kyle D. Mitchell, Esq. is an Immigration Attorney in New York City who specializes in EB-5 investor visas. His boutique firm offers detailed service descriptions and a consultation booking option, and he engages with a community of over 1,000 verified members. If you need personalized guidance on EB-5 job creation rules for your small business, visit Kyle D. Mitchell, Esq. — EB-5 Investor Visa Attorney | NYC to learn more and schedule a consultation.
Quiz: Test your knowledge
Which of the following statements about EB-5 job creation is true?
- A. You can count part-time jobs if they total 35 hours per week.
- B. You must create at least 10 full-time jobs for qualifying U.S. workers.
- C. Existing employees always count toward the 10-job requirement.
Correct answer: B. The EB-5 program requires the creation of at least 10 full-time jobs, each involving at least 35 hours per week, for qualifying U.S. workers. Part-time jobs do not count, and existing jobs only count if you invest in a troubled business and preserve them.