H-1B Workers Explore the EB-5 Visa Program for Better Prospects

  Author: Samuel B. Silverman

For thousands of H-1B visa holders laid off in 2022-23 across the slumping U.S. tech sector, the American Dream has been abruptly cut short with not much hope in sight. Sacked workers have only 60 days from the date of their termination to find a new employer to retain their visa status. Otherwise, they have no choice but to leave the United States and head back to their home country. As the industry is in a downturn and new jobs are hard to come by, the likelihood of this possibility is quite high.

In the last few decades, the H-1B visa has been undeniably the most sought-after work visa for high-skilled immigrant workers, especially in the tech industry. This valuable non-immigrant visa program opened up new vistas of opportunity for qualified foreign workers to advance their career in the United States. It also provided employers in the United States access to a larger pool of talent for specialty positions that could not be filled due to shortages in the local job market.

Downsides of the H-1B Visa

Notwithstanding the popularity and benefits of the H-1B visa program, the recent layoffs have once again exposed the vulnerability of H-1B visa holders.

Since the H-1B visa is linked to their employment status, H-1B workers are always faced with the prospect of having to leave the United States if they lose their job.

Moreover, obtaining an H-1B visa is becoming increasingly difficult due to stringent eligibility criteria, backlogs, and the random selection of applicants through a lottery process.

Due to these uncertainties, foreign workers are contemplating other alternatives that allow them to live and work in the United States without constantly fearing the loss of their job and visa. The EB-5 Immigrant Investor Program is one such feasible solution that offers permanent residency in the United States through investment in commercial enterprises.

What Makes the EB-5 Visa Appealing to H-1B Workers?

The EB-5 program is administered by the United States Citizenship and Immigration Services (USCIS), which enables foreign nationals to apply for permanent resident status subject to meeting some basic requirements. These include investing a minimum amount of capital and creating at least 10 permanent full-time jobs for qualified U.S. workers.

The EB-5 program has significant advantages for H-1B workers and other foreign nationals aspiring to settle in the United States if they can fulfill the USCIS eligibility criteria.

Unlike the H-1B visa, the investor does not need any employer sponsorship and can reside anywhere in the United States without being tied to a job. The visa is also granted to the applicant’s spouse and unmarried children under the age of 21, so all family members of the investor can enjoy the freedom to live, work, or study anywhere in the United States without any restrictions.

Compared with the H-1B visa, it also takes much lesser processing time for EB-5 visa holders to secure a Green Card and subsequently U.S. citizenship.

Increased Efficiency and Transparency of the EB-5 Program

The provision of EB-5 concurrent filing enabled by the EB-5 Reform and Integrity Act of 2022 (RIA) now allows non-immigrant visa holders already in the United States to file I-526 and I-485 petitions simultaneously. This has resulted in speeding up the process of adjustment of visa status for H-1B visa holders switching to the EB-5 visa.

This allows applicants to get an employment authorization document (EAD) and a travel permit in a matter of days.

Another important implication of this provision is that the EB-5 applicants and their family members can now continue to stay in the United States while their I-526 petition is pending approval. This is great news for laid-off H-1B workers transitioning to the EB-5 investment visa, as it nullifies their 60-day deadline to find a new job or leave the country.

The RIA has introduced several other reforms in the program to make it more transparent and appealing to investors.

In the evolving immigration scenario and considering the various benefits of the EB-5 investment visa over other non-immigrant visas, a sharp increase in the number of EB-5 applicants is quite understandable. A majority of these are H-1B workers who have either lost their jobs or fear being laid off and are looking for a more promising route to a secure future in the United States.

For more information on how to begin the EB-5 process as an H-1B worker, schedule a free consultation with EB5AN.