A direct EB-5 investor has to put ten real people on a real payroll. Not ten modeled jobs. Each of the ten must be a full time employee of the new commercial enterprise you funded with $800,000 in a Targeted Employment Area or $1,050,000 outside one, lawfully authorized to be employed here as an immigrant rather than on a temporary visa, and paid directly by that enterprise. Direct cases earn no indirect or induced credit. The multiplier math a Regional Center relies on is closed to you, so ten W-2 employees is the entire answer, and documenting them is most of the work.
Who counts as a qualifying employee
8 CFR 204.6, the EB-5 eligibility regulation draws the boundary narrowly. US citizens count. Lawful permanent residents count. Other immigrants lawfully authorized to be employed in the country count too, a group that reaches asylees and refugees.
Everyone else falls out of the tally. A worker on an H-1B or an L-1 visa is a nonimmigrant and adds nothing. You cannot count yourself. Your spouse and your children are excluded by name in the regulation, which regularly surprises families who built the staffing plan around a son managing the front of house.
Wages have to come from the enterprise itself. Independent contractors paid on Form 1099 are not employees under the rule, so a company genuinely built on contractor labor cannot support a direct petition however much work gets done.
The 35 hour floor and the part time trap
Full time means at least 35 hours per week. Thirty four hours does not round up.
Now the trap the regulation sets for anyone who staffs by total hours. Two clerks at 20 hours each produce 40 hours of labor, and 8 CFR 204.6(e) still counts them as zero qualifying jobs, because the regulation expressly excludes combinations of part time positions even where the combined hours clear 35.
One structure does survive. A job-sharing arrangement, in which two or more employees share the duties of a single full time position, counts as one qualifying job. The difference is structural rather than arithmetic. A shared position carries one job description and occupies one slot on the organization chart. Two separate part time roles occupy two slots, and neither of them qualifies.
Hire earlier than your model says
Form I-829, the petition to remove conditions is filed during the 90 day window before the second anniversary of the day you obtained conditional residence. Approval strips the conditions as of that second anniversary, not retroactively to the date you first invested. Count backward from that anniversary and the hiring calendar tightens quickly.
Buildouts slip. Permits take a quarter longer than the contractor promised. Somebody quits in month seven and the replacement search runs six weeks. A staffing plan that reaches exactly ten heads in month 22 has no slack in it, and slack is the only thing standing between an ordinary operating problem and a denied petition.
Budget twelve or thirteen positions where ten are required. The extra payroll is real money. It is also the cheapest insurance available on an $800,000 immigration bet, a point we develop in Direct EB-5 Investment: Start Your Own US Business for a Green Card.
Payroll evidence an adjudicator can follow
8 CFR 216.6, the rule governing removal of conditions sets out what accompanies the I-829, including proof that the enterprise was established and the capital invested, plus evidence that the required jobs were created. Strong files are boring. Documents a third party already received beat anything you draft yourself.
- Form I-9 for every hire, with Section 2 completed within three business days of the start date and the form kept for three years after hire or one year after separation, whichever is later.
- Form W-4 plus the state new hire report, which federal law requires within 20 days of hiring.
- Quarterly Form 941 payroll tax returns, reconciled line by line to your payroll register.
- State unemployment insurance wage filings, which carry weight precisely because the state already holds a copy.
- Form W-2 for each qualifying employee for each year of the conditional period.
- Timesheets or scheduling exports showing 35 hours or more, week by week, for every position you intend to count.
Keep a single schedule showing, for each employee, the hire date alongside weekly hours and gross wages paid. Adjudicators read dozens of these files. One that makes the count obvious in ten minutes fares better than a box of unsorted printouts, and the USCIS Policy Manual chapter on immigrant investors is the standard your counsel should be reconciling against.
When an employee quits, does the job still count?
Yes, provided you refill the position. The test looks at whether a permanent full time position exists and is occupied, not at whether one individual sat in it for 24 straight months. A line cook who leaves in month nine and is replaced in month ten leaves your count intact.
A line cook who leaves in month nine and is never replaced does not.
Document every replacement with its own offer letter, I-9 and first payroll entry, so the file reads as continuity rather than as a hole. Where a position sat empty for several months, expect a Request for Evidence asking why, and answer it with the recruiting record you kept at the time rather than a memory reconstructed two years later.
Why contractors and staffing agencies rarely work
Because the paycheck has to come from your enterprise. A staffing agency pays its workers, issues their W-2s and directs their assignments, which makes them the agency's employees rather than yours. Some arrangements survive scrutiny where the enterprise is the employer of record and the agency only sources candidates. The burden of proving that sits entirely on you.
Management contracts create the same problem. If the hotel management company signs the paychecks, the housekeepers sit on the management company's payroll and not on yours. Investors have discovered this at the I-829 stage, which is the worst possible moment to learn it. Our page on Direct EB-5 Nightmares 2026: Common Pitfalls That Kill Entrepreneur Plans works through more of these structural mistakes.
Build the I-829 file from the first paycheck
Reconstructing 24 months of payroll under deadline pressure is miserable and expensive, and it becomes close to impossible once a bookkeeper has moved on. Open the evidence folder the week you make your first hire.
Direct investors file Form I-526, the standalone immigrant petition rather than the I-526E used for Regional Center offerings, and the job creation story told there should match the story your payroll tells two years later. Where the business plan promised a 14 person kitchen and payroll shows nine, explain the variance in the I-829 instead of hoping nobody compares the documents.
One discipline is worth the trouble every quarter. Sit down with the payroll register and ask whether you could prove ten qualifying jobs today, on paper, without help. How much personal involvement the program demands is a separate question covered in Direct EB-5 Management Requirement: How Hands-On Must an Investor Be?, and the two requirements interact, because an investor with no visibility into payroll usually cannot answer that quarterly question honestly.
Ten jobs is a modest number for a functioning business. It is a brutal number for a business that opened late, hired slowly and kept its records badly.