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[Q] In troubled business case, is the number of jobs that have to be preserved 10 or more, or not less than the number of employees before the investment??


USCIS has stated:

Answer: Every EB-5 investor must create at least 10 jobs as a result of his or her capital investment. However, meeting the job creation requirements through job maintenance in a “troubled business” also involves demonstrating that the number of existing employees were maintained at no less than the pre-investment level during the EB-5 investor’s two year period of conditional permanent residence. [See 8 CFR 204.6(j)(4)(ii) & 8 CFR 216.6(c)(1)(iv).]

8 CFR 204.6(j)(4)(ii) reads:

(ii) Troubled business. To show that a new commercial enterprise which has been established through a capital investment in a troubled business meets the statutory employment creation requirement, the petition must be accompanied by evidence that the number of existing employees is being or will be maintained at no less than the pre-investment level for a period of at least two years. Photocopies of tax records, Forms I-9, or other relevant documents for the qualifying employees and a comprehensive business p lan shall be submitted in support of the petition.

And 8 CFR 216.6(c)(1)(iv) reads:

(iv) The alien created or can be expected to create within a reasonable period of time ten full-time jobs to qualifying employees. In the case of a "troubled business" as defined in 8 CFR 204.6(j)(4)(ii) , the alien maintained the number of existing employees at no less than the pre-investment level for the previous two years.

The above regulations show that the number of existing employees to be maintained must be "no less than the pre-investment level for the previous two years", but this is problematic because it is unclear whether the number of employees cannot dip below the pre-investment level. And it is for this reason, I would not advise anyone to pursue a troubled business EB-5 case.