Job creation is one of the two structural pillars of EB-5 eligibility, and it is the pillar that most often comes apart not at filing but later, when a project's actual employment trajectory diverges from the economic model that supported the I-526E approval; in the current adjudication climate, the methodology, the construction-versus-operations split, and the underlying Matter of Ho business plan are all being read more skeptically than they were a few years ago.
The job-creation requirement sits in INA § 203(b)(5)(A)(ii): each EB-5 investor must invest in a new commercial enterprise that "will benefit the United States economy and create full-time employment for not fewer than 10 United States citizens, United States nationals, or aliens lawfully admitted for permanent residence." Implementing language is at 8 C.F.R. § 204.6(j)(4), which sets the documentary expectations for showing that 10 qualifying full-time positions either have been created or will be created within a reasonable period of time. "Full-time" is defined as employment of at least 35 hours per week (8 C.F.R. § 204.6(e)).
For direct EB-5 petitioners, qualifying jobs are W-2 positions held by U.S. citizens, lawful permanent residents, or others authorized to work, employed by the new commercial enterprise itself. For regional-center investors, the analysis is broader: under INA § 203(b)(5) and the RIA's amendments, regional-center investors may count direct, indirect, and induced jobs through a reasonable economic methodology. RIMS II, IMPLAN, and similar input-output models are the methodologies most commonly seen in I-956F filings.
The EB-5 Reform and Integrity Act of 2022 layered new structural caps onto the regional-center model. Indirect jobs may comprise no more than 90% of the total job count if construction lasts at least two years, and no more than 75% of the total if construction is shorter than two years. Direct construction jobs are themselves discounted: for projects with construction periods under 24 months, the count is multiplied by (construction months / 24). Tenant-occupancy jobs remain technically permissible, but cannot reflect mere relocation of jobs from elsewhere. These caps are codified at INA § 203(b)(5)(E)(iv)-(v). Whether a particular methodology and project record satisfy the requirement is decided case-by-case by the adjudicating officer.
USCIS adjudicators approach job creation in two passes. At the I-526E stage, the question is whether the project, on the documentary record, will create at least 10 qualifying jobs per investor within a reasonable time. At the I-829 stage, the question shifts to whether the project actually did so. The adjudicating officer in each posture is looking for internal coherence between the economic-impact analysis, the Matter of Ho-compliant business plan, the project budget, and the underlying construction and operations timeline.
The seminal authority on the business plan is Matter of Ho, 22 I&N Dec. 206 (Assoc. Comm'r 1998), which established the elements a credible EB-5 business plan must contain: market analysis, competitive analysis, organizational structure, personnel plan with hiring schedule, sales projections, capital requirements, and a level of detail that lets an adjudicator evaluate feasibility. Ho predates RIA but its standard remains the baseline. Practitioners report that adjudicators are now reading Ho-compliant plans more rigorously, particularly the linkage between the staffing schedule and the construction or operating budget that the economic methodology relies on.
In the current adjudication environment, several patterns recur. Officers have been challenging the assumed values for inputs to economic models, particularly floor-area-ratio and tenant-improvement assumptions that drive indirect-job counts in mixed-use projects. They have been scrutinizing tenant-occupancy methodologies for evidence that jobs counted are jobs created and not merely jobs relocated from elsewhere in the regional center's geographic area. And they have been more willing, since the June 2025 reinstitution of the CISNA/EDLO directive, to deny petitions outright where the economic model's inputs cannot be reconciled to the project budget rather than issue an RFE inviting clarification.
For projects whose construction period straddles the 24-month threshold, the construction-period discount has become a recurring point of pressure. Practitioners report RFEs questioning whether construction "begins" at groundbreaking, at permit issuance, or at site preparation; the answer has consequences for whether direct construction jobs count at full or fractional value, and for whether the indirect-job cap is 90% or 75% of total jobs counted toward the petitioner's 10-job allocation. USCIS has not publicly resolved several of these timing questions.
How these analytical pieces fit together in any given case is decided case-by-case by the adjudicating officer, and conservative practice is to over-document at I-526E rather than rely on the model alone.
- Matter of Ho-compliant business plan. Narrative business plan with market analysis, competitive landscape, organizational structure, detailed personnel plan tied to a hiring timeline, capital expenditure schedule, and revenue projections, typically prepared by a specialist EB-5 business-plan author and signed off by project principals. Has supported I-526E approval in past cases when the personnel schedule reconciles to the economic model's labor inputs.
- Third-party economic-impact analysis. Independent economist's report applying RIMS II, IMPLAN, or comparable methodology to the project's construction expenditures and operating revenues, with explicit construction-versus-operations split and explicit application of the RIA caps. Reports prepared by economists with prior I-956F approvals tend to draw fewer challenges than reports from new authors, although this is decided case-by-case.
- Project budget tied to economic model inputs. Line-item construction budget and pro-forma operating budget whose totals match the construction expenditures and revenues fed into the economic model. Practitioners report that mismatches of even modest size between the budget and the model invite RFEs questioning the foundational assumptions.
- Construction timeline documentation. General contractor's schedule, milestone certifications, building permit issuance, and certificate of occupancy where applicable; these documents have supported the construction-period determination that drives the 90%/75% indirect-job cap and the (months / 24) discount on direct construction jobs.
- Tenant lease documentation (mixed-use and commercial projects). Executed leases or letters of intent, market studies showing absorption rates consistent with the model, and evidence that tenant operations are new to the project's geographic area rather than relocations. USCIS has not approved a fixed test for what makes a tenant a "new" job source, so the analysis is decided case-by-case.
- I-829 evidence of actual jobs. At the removal-of-conditions stage, payroll records, I-9s, quarterly tax filings (Form 941), state unemployment-insurance filings, and W-2s for project employees; for indirect jobs, an updated economic-impact analysis showing actual construction expenditures and operating revenues rather than projections. Whether the actual record satisfies the 10-job allocation per investor is decided case-by-case by the adjudicating officer.
Challenges to economic-model inputs. USCIS argues that the FAR, tenant-improvement, occupancy-rate, or wage-rate assumptions used in the economic-impact analysis are not adequately supported. Practitioners typically respond with a supplemental affidavit from the economist, recent comparable-project data, and source citations for industry benchmarks. Whether the response rehabilitates the model is decided case-by-case.
Construction-period discount disputes. Officers question when construction "began" for purposes of the 24-month threshold, often citing project documents that show site preparation or design work predating the date the petition relied on. Practitioners typically respond with construction-contract documentation, lender-draw schedules, and a clarifying narrative; the response sometimes preserves a 90%-cap calculation that USCIS had recharacterized into the 75% bucket.
Tenant-occupancy "relocation" arguments. USCIS asserts that jobs counted from tenants are merely relocated from existing businesses elsewhere within the geographic area, not net new jobs. Responses tend to include market studies, tenant declarations, and evidence of new entry into the market. Whether the record overcomes the relocation argument is decided case-by-case.
Revenue-based jobs that did not materialize. At I-829, USCIS challenges revenue-based job projections where actual operating revenues fell short of the model's assumptions. Practitioners typically respond with updated economic analyses keyed to actual revenues, evidence of additional jobs in operations, or evidence of construction-period jobs not previously credited. Outcomes are decided case-by-case and the post-RIA climate has narrowed the room for revenue-shortfall narratives.
**Business-plan deficiencies under Matter of Ho.** USCIS issues RFEs identifying missing elements (often the personnel schedule, market analysis, or capital-requirements section) or internal inconsistencies between the business plan and the economic model. The response is typically a supplemented or restated plan; "skeletal filings are dead," and a thin original plan rarely survives a Ho RFE without substantial supplementation.
Job creation interacts with project structure, RIA Section S grandfathering, and country chargeability in ways that shape how thoroughly an investor should diligence the project before signing a subscription agreement.
For investors deciding between direct EB-5 and a regional-center project, job creation tends to favor regional-center participation because of indirect-job leverage. A direct EB-5 business must produce 10 W-2 positions tied to the operating company itself; a regional-center investor can rely on the project's broader economic footprint, subject to the RIA's 90%/75% caps. For investors who prefer passive ownership and have no operational role in mind, the regional-center route is often the only feasible path to satisfying the 10-job requirement.
For projects whose construction period is close to two years, the difference between 22 and 24 months can move thousands of countable jobs in a pooled investment. Investors evaluating projects in this range should ask the regional-center sponsor for the specific construction timeline assumed in the economic model, the lender's draw schedule, and the contingency analysis if construction extends or accelerates. A small change can affect both the indirect-job cap and the (months / 24) discount on direct construction jobs.
The RIA Section S grandfathering deadline of September 30, 2026 places additional weight on filing well-supported petitions, not skeletal ones. Filing a petition with a thin business plan or an unsupported economic model in order to capture grandfathering creates exposure: under the current adjudication environment, direct denials of weak filings are occurring without RFEs, and a denial after September 30, 2026 cannot be remedied by refiling under grandfathering protection. The conservative posture is to file early enough that any RFE can be answered and any necessary interfiling completed before the deadline.
For backlogged investors (particularly those chargeable to India or, historically, China), the gap between I-526E approval and conditional residence can stretch the project's operating timeline. A project that creates jobs on schedule may nonetheless face a different operating environment by the time the I-829 is filed, which is one reason practitioners emphasize sustained diligence on the project itself rather than treating I-526E approval as the end of the inquiry.
How job-creation strategy fits any individual case depends on the project, the investor's country chargeability, the underlying nonimmigrant status (for those filing concurrent I-485), and the discretion of the adjudicating officer at both stages.
EB-5 approval rates have fallen materially over the past several adjudication cycles, and the rate at which USCIS issues Requests for Evidence, Notices of Intent to Deny, and direct denials has risen sharply. The June 2025 reinstitution of the CISNA/EDLO directive (instructing officers to deny rather than RFE in close cases) and the routine pairing of I-829 denials with Notices to Appear in removal proceedings are reshaping how EB-5 practice is done. Profiles that we and other firms saw approved without challenge two or three years ago are now drawing aggressive scrutiny, particularly on job-creation methodology, tenant-occupancy assumptions, and the construction-period discount under the RIA caps, and some are being denied outright on records that, on their face, look as strong as records that previously cleared. Officers also vary considerably in how they apply discretionary judgments under the post-RIA framework. This climate is not unique to projects with this structure, but it is real, and it informs how we counsel clients before, during, and after filing.
This page describes patterns we have seen across many petitions and project reviews. It is general information about how the job-creation requirement is typically analyzed, not a prediction about any specific case and not a representation that meeting any particular evidence pattern will result in approval. EB-5 outcomes turn on the entire record, the strength of the legal and factual arguments, the current adjudication climate, and the discretion of the adjudicating officer.
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Immigration counsel to Fortune 500 employers at a national firm · Adjudicated 12,000+ visas at the U.S. Consulate, Mexico · Working in U.S. immigration since 2008
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