Independent contractors do not count as direct employees for EB-5. Determine the actual relationship rather than relying on a payment label, and distinguish direct employment from the applicable regional-center job methodology.
Separate invoices from payroll
Identify what each payment represents and the method the case uses. A large labour budget is not automatically a qualifying direct-job count.
In a direct investment, that engagement is real work rather than a formality, and the structure should reflect it: a defined role, authority recorded in the governing documents, and evidence that the person actually exercises it. The investor must be engaged in the enterprise's management or policy formulation rather than holding a passive interest, which in a regional centre structure is ordinarily satisfied through the rights of a limited partner or member. Ask the sponsor to explain in writing how the job-creation methodology works for this structure, then have counsel confirm whether the claimed direct or indirect jobs are permitted by the arrangement being offered. For a direct EB-5 restaurant the investor must therefore design an operation with at least ten year-round full-time roles: kitchen, service, management and administration, each documented by payroll and Form I-9 records. A stated maturity is not automatically fatal, while a guaranteed return of capital sits badly with the requirement that the investment be at risk, and the difference lies in the language rather than in the sales description.