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Qualifying employee
Also called qualifying worker, US worker, qualified employee.
A 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.
What it decides
8 CFR 204.6(e) gives conditional residents, temporary residents, asylees, refugees and people remaining in the United States under suspension of deportation as examples, then excludes the people most often counted by mistake: the investor, the investor's spouse, sons or daughters, and any nonimmigrant. An H-1B, L-1, F-1 OPT or J-1 worker on the project payroll is therefore not a qualifying employee, and neither is the investor's own adult child, since the exclusion of sons and daughters carries no age limit. The statute is close but not identical. 8 U.S.C. 1153(b)(5)(A)(ii) counts US citizens, United States nationals, lawful permanent residents and other immigrants lawfully authorized to be employed, and its only stated exclusion is the immigrant and the immigrant's spouse, sons or daughters. Nonimmigrants drop out of the statutory count because 8 U.S.C. 1101(a)(15) defines an immigrant as every alien who is not within a nonimmigrant class, so the express nonimmigrant bar is the regulation's own wording. United States nationals are the real gap: the statute names them, the regulation's three categories do not reach them, and the statutory text is the one that controls. Independent contractors are excluded separately, by the definition of employee in the same paragraph, which also requires that the person receive wages or other remuneration directly from the new commercial enterprise. USCIS tests named individuals only for direct jobs, evidenced by Form I-9 and tax records; indirect regional center jobs are established by economic methodology instead.
Where this is explained properly
Pages here that go into qualifying employee rather than mentioning it.
Related terms
- 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.
- Job sharingA job-sharing arrangement, where two or more qualifying employees share one full-time position, counts as full-time employment for EB-5 provided the position still requires at least 35 working hours a week.
- 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.
Checked against primary sources on . Back to the glossary