The EB-5 investor program has become increasingly popular among H-1B visa holders, who are highly skilled professionals with specialized knowledge in their fields. H-1B workers may face challenges and limitations in obtaining permanent residency in the United States.
A Path to Permanent Residency
A Path to Work and Travel Authorization
A Faster Path to a Green Card
A Path to a Bright Future in the United States
Getting Started
A Path to Permanent Residency
Large-scale layoffs across the United States have left a significant number of H-1B visa holders looking for alternative options to remain in the United States. Although job loss is never easy, this situation highlights a larger issue for H-1B visa holders specifically, as they may have to leave the U.S. if they are unable to secure new employment within a prescribed timeframe.
However, there is an alternative option for them to consider; the EB-5 investor program. Immigration attorneys are quick to point out that H-1B employees are able to file for an EB-5 Green Card at any time, provided that their chosen investment adheres to all necessary regulations.
As part of the wave of job loss across the United States, one of the hardest hit industries was the tech sector. It is common practice in this field to diversify engineering and computer science departments with foreign nationals who require an H-1B visa. This temporary non-immigrant visa allows individuals to work in the United States for a maximum of six years, and it is tied to an employer sponsor.
Under the current rules, if these individuals should lose their association with their sponsor, they typically have 60 to 90 days to find new employment—or face deportation. However, the new EB-5 Reform and Integrity Act of 2022 (RIA) provides an option for H-1B workers to adjust their immigration status immediately.
A Path to Work and Travel Authorization
One of the advantages gained under the RIA is that temporary visa holders, including H-1B workers, can apply for an Adjustment of Status (AOS) while remaining in the United States.
AOS is a process by which an individual who is already in the United States can apply for permanent resident status—in other words, a Green Card—without having to leave the country. While an AOS application is pending, the foreign national can remain in the U.S. and can likely secure an Employment Authorization Document (EAD) and an Advance Parole (AP) Travel Document. The EAD allows the individual to work, and the AP allows them to travel in and out of the U.S. while their Green Card application is pending.
Although this process is not immediate, this roadmap can allow for work and travel authorization within three to six months. AOS thus provides applicants with the freedom to work and live anywhere in the U.S. without the need for employer sponsorship.
Some basic requirements of concurrent filing include ensuring that both the date for filing and the final action date for an applicant’s nationality are current in the Visa Bulletin.
Chinese and Indian investors are experiencing a backlog of EB-5 visa applications and are currently subject to delays in the Visa Bulletin. However, investors from these countries can avoid these delays and qualify for AOS by investing in an EB-5 project located in a targeted employment area (TEA).
A Faster Path to a Green Card
Depending on the foreign investor’s country of origin, processing times for the EB-5 visa may be significantly more efficient than other permanent residency alternatives. H-1B visa holders from high-volume countries such as China, India, Vietnam and Brazil could wait upwards of 20 years for a Green Card, whereas an EB-5 visa can fast-track U.S. permanent residency in only two to four years.
The EB-5 program offers a unique opportunity for H-1B visa holders to invest in a business and become a part of the U.S. economy. The program requires investors to invest a minimum of $1,050,000 or only $800,000 if the investment is made in a TEA.
These investments not only create jobs for U.S. workers but also provide funding for new businesses and economic development in the United States.
There are two ways to invest in the EB-5 program: through direct investment or through the EB-5 Regional Center Program.
Direct Investment
In this scenario, the EB-5 applicant is required to invest directly into a commercial enterprise, without third-party intermediaries overseeing the flow of funds.
The EB-5 Regional Center Program
In this scenario, the EB-5 applicant can invest in a fund managed by a regional center, which then provides the funds to a qualifying commercial enterprise.
What is a Regional Center?
Regional centers are entities approved by the United States Citizenship and Immigration Services (USCIS) to raise capital from foreign investors and inject it into new commercial enterprises (NCEs). Regional centers are responsible for creating and managing investment funds used to raise funds for commercial enterprises.
EB-5 investors are required to create at least 10 jobs from their capital. Investors in regional center-sponsored projects have the advantage of more lenient job calculation criteria that make it easier to fulfill this requirement.
What is a TEA?
One of the main benefits of the EB-5 program is the ability to invest in a targeted employment area, which is defined as a rural area or an area with high unemployment. This means that foreign investors can invest in businesses that are located in areas that are specifically in need of economic stimulus, which can lead to job creation.
A Path to a Bright Future in the United States
A significant advantage of the EB-5 program is that it allows investors to bring their immediate family members—spouses and children under the age of 21—to the United States. This is especially important for H-1B visa holders who may have families living abroad and want to bring them to the United States permanently.
Each immediate family member will enjoy their own permanent residency status, granting them the right to attend school, legally work in the United States if they so choose, or simply enjoy retirement while living and traveling anywhere in the United States.
The EB-5 Immigrant Investor Program truly sets the whole family up for success.
Getting Started
It is important to note that the EB-5 program is complex, and it is recommended to consult with an immigration attorney to ensure that the investment you choose is compliant with all regulations, including the minimum job creation requirement.
Ram consulted with Anahita, one of our recommended immigration attorneys, who was able to walk him clearly through the whole EB-5 investment process. He says that having a good immigration attorney is essential:
It is also valuable to use established regional centers and their resources to avoid unnecessary risk.
The EB-5 visa is a conditional Green Card, which means that after two years of investing, the investor must prove that they have met the job creation requirement. This is an important consideration for H1B visa holders who may not have the experience or resources to navigate the EB-5 program on their own.
Schedule a free consultation with EB5AN to learn more.
