到底是EB5投资在制造就业还是“新企业”在制造就业？？？
根据移民法律 8 C.F.R. 204.6(j) - "alien entrepreneur must be accompanied by evidence that the alien has invested or is actively in the process of investing lawfully obtained capital in a new commercial enterprise in the United States which will create full-time positions for not fewer than 10 qualifying employees....”
所以，Eb5所满足的就业是“新企业”制造的，而不仅仅是EB5的投资制造的。而这个新企业有可能接受了其他非Eb5的投资，而这些投资都可以被算作此新企业创造的就业（也就是可以全部算在EB5投资人头上）， 另外移民局也承认所有投资（EB5+非EB5）制造的就业不需要做特别区分来“allocate”那些是算在EB5投资人头上，哪些不算。。。8 C.F.R. 204.6(g)(2)
建议大家仔细研究一下USCIS最近出的Draft Memo. 在我下面的帖子里有链接
According to USCIS Policy Memo DRAFT (attached) (although this is currently draft under final scrutiny), it can represent USCIS’s adjudication policy and reflection the correct interpretation of law.
Under Part III. C for “the creation of jobs” of the draft memo, USCIS spelled clearly that “it is important to recognize that while the immigrant’s investment must result in the creation of jobs for qualifying employees, it is the new commercial enterprise that creates jobs” USCIS goes on and made a example of a hotel deal using bridge financing, and acknowledges that the EB5 investment can go to pay “part or all of any of these expenses”, and be credited for jobs that are created by the new hotel (which is the job creation enterprise) .
Also, pursuant to 8 C.F.R. 204.6(j) where the exact language states that it is the new commercial enterprise that will create the ten jobs.
In addition, USCIS clarifies that , in line with the law and precedent case of Matter of Izummi, the EB5 investment must be made “available to the business most closely responsible for creating the jobs upon which EB5 eligibility is based”. Therefore, in the regional center context, the new commercial EB5 fund receiving enterprise does NOT have to be the job-creation entity. If this happens, then “the full amount of the capital must be first invested in the new commercial enterprise and then placed into the job creation entity”, as long as the two entities are closely related.
“when there are multiple investors in a new commercial enterprise, the total number of full-time positions created for qualifying employees will be allocated only to those immigration investors who have used the establishment of the new commercial enterprise as the basis of their entry in the EB5 Program. An allocation does not need to be made among persons not seeking classification in the EB5 program, nor an allocation need to be made among non-natural persons (such as among investing corporations)”
