Jobs

Employee

Employee, for EB-5 job counting, is a person who provides services or labor for the new commercial enterprise and receives wages or other remuneration directly from it, a definition that expressly excludes independent contractors and is separate from whether that person is a qualifying employee.

What it decides

8 CFR 204.6(e) defines employee as an individual who provides services or labor for the new commercial enterprise and who receives wages or other remuneration directly from it, adds that under the Regional Center Program an employee also means an individual providing services or labor in a job created indirectly through the investment, and closes with the sentence that the definition shall not include independent contractors. The exclusion bites hardest on a standalone EB-5 investment, which cannot count indirect jobs at all, so positions filled by contractors rather than by people on the enterprise's payroll do not count toward the ten however many of them work on the site. Two further tests sit on top of this one: the person must be a qualifying employee, and the position must require at least 35 working hours a week. The USCIS Policy Manual restates the definition but drops the independent contractor sentence, so the regulation is the source to cite.

Governed by 8 CFR 204.6(e), definition of Employee, which is the only text carrying the independent contractor exclusion. Read alongside the definitions of Qualifying employee and Full-time employment in the same subsection. USCIS Policy Manual Volume 6, Part G, Chapter 2, section on Full-Time Positions for Qualifying Employees, current as of 5 August 2026, repeats the first two sentences of the definition but omits the independent contractor sentence, so it is good for the definition and bad for the exclusion.

Where this is explained properly

Pages here that go into employee rather than mentioning it.

Related terms

Qualifying employeeA qualifying employee is a US citizen, a lawful permanent resident, or another immigrant lawfully authorized to be employed in the United States, and only their full-time positions count toward an investor's ten. The statute adds United States nationals to that list.
Full-time employmentFull-time employment in EB-5 means employment of a qualifying employee in a position that requires a minimum of 35 working hours per week, not 40. The 35 hours are measured by what the position requires rather than by the hours any one person works, which is why job sharing counts, but the person filling the position must still be a qualifying employee.
Combinations of part-time positionsTwo or more separate part-time positions can never be added together to make one qualifying EB-5 job, even when their hours combine to the 35 a week that counts as full-time. Only a single full-time position shared by two or more qualifying employees counts.
Direct jobsA direct job is a position held by an employee of the new commercial enterprise itself or, in a regional center case, of the job-creating entity, as distinct from an indirect job held at a supplier or other business outside them.
Indirect jobsIndirect jobs are positions created elsewhere in the economy by a project's spending, estimated with an economic model rather than counted from a payroll, and available only to regional center investors. They may fill at most nine of the ten jobs each investor must create.

Checked against primary sources on 10 August 2026. Back to the glossary