Under the EB-5 program, an immigrant entrepreneur may obtain
a green card if his or her investment in a commercial enterprise in the United
States yields at least 10 permanent full time jobs within two years.  Nearly all EB-5 projects involve new or
additional construction that takes place over a period of years, so a question
naturally arises: do the construction jobs that are created as a result of the
EB-5 investment count toward the EB-5 program's job-creation requirement?

The answer to this question is a qualified "yes," although
it is somewhat complicated.  Several court
cases, administrative hearings and lobbying by influential lawmakers have
guided the government's decision making process in this area.

During the early years of the EB-5 program, EB-5
commercial enterprise-related construction jobs were not considered permanent
full time jobs for the purposes of the job creation component of the program,
mainly because they are often seasonal or intermittent in nature.  Moreover, a federal appeals court in 2003
declared that construction jobs were not considered direct or indirect jobs
created as a result of an EB-5 investment since they were not continuous or
permanent.  That case was initiated by a
foreign investor whose petition for a permanent residency visa was denied on
the basis of inadequate job creation; the treatment of construction jobs for
the purposes of the EB-5 program was then examined by the court.

But as the economy sputtered and ultimately crashed in 2008,
the government was urged to reconsider its stance on the construction job
question.  A number of construction
projects that were already underway at that time suddenly came to a standstill
as banks and other sources of financing dried up.  A U.S. Senator from Texas, noting that the
main purpose of the EB-5 program was to encourage job creation and economic
development, asked the government to change its policy with respect to
construction jobs.  Construction is an
important industry that employs hundreds of thousands of Americans, and it did
not seem reasonable to exclude it from the EB-5 program's job creation
requirements.  The policy, in effect,
intensified an already severe economic crisis.

As a result, the United States Citizenship and Immigration
Services agency, which oversees the EB-5 program, issued a memo in 2009 that
reflected a slightly modified approach to the consideration of construction jobs.  Rather than excluding the entire category of
construction jobs from its review of EB-5 visa petitions, USCIS will now make a
determination on a case-by-case basis.  For
example, a construction job that involved a specific aspect of a project (such
as electrical work) that was limited in duration (a few weeks, for example), it
will not be considered a permanent full time job.  If, on the other hand, a petition included
construction jobs that would involve over 30 hours a week for several years,
that would fall within the meaning of "continuous" (rather than "temporary" or
"intermittent"), and would therefore count toward the job creation requirement.

Overall, then, it appears USCIS has slightly loosened its
standard with respect to whether construction jobs are "permanent" for the
purposed of the EB-5 program.  Rather
than eliminating an entire category of jobs (involving dozens or even hundreds
of jobs) from consideration, the agency will now conduct a fact-specific
examination of the work that is done, the timeframe in which it is necessary to
the project, and the nature of the job in the context of the EB-5 project.  This new clarity, in turn, can help foreign
entrepreneurs in their decision making process as they consider investing in commercial
enterprises here.