How the EB-5 Visa Offers a Lifeline to H-1B Workers

Limitations of the H-1B Visa

Through the H-1B visa program, qualified foreign nationals have the opportunity to advance their careers in the United States. Moreover, it provides employers in the United States access to a much larger pool of talent for specialty positions that could not be filled otherwise.

As such, the H-1B visa has risen in popularity to become the most sought-after work visa for high-skilled immigrant workers, especially in the tech industry. In fact, it is common practice in this field to diversify engineering and computer science departments with skilled H-1B workers.

However, the tech industry has been hit hard by the COVID-19 pandemic, market changes, company mergers, and the increased use of automation and artificial intelligence. Throughout the industry, over 270,000 jobs have been cut in the last year alone, and perhaps no group has been more adversely affected than workers on temporary work visas. In fact, a significant portion of this group — as much as 30% to 40% — is made up of Indian workers on the H-1B and other non-immigrant work visas.

While unexpectedly losing one’s job is challenging in itself, these visa workers depend on their employment status to remain in the United States. They have a very limited timeframe to find a new employment sponsor and maintain their visa status. In many cases, they are forced to leave the country.

For H-1B workers who have lost their jobs but wish to remain in the United States, the EB-5 Immigrant Investor Program offers a viable solution.

In this piece we will explore the benefits of the EB-5 visa for non-immigrant workers and how they can qualify.

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

Overseen by U.S. Citizenship and Immigration Services (USCIS), the EB-5 program allows foreign nationals to apply for U.S. residency. Provided that an applicant meets USCIS requirements and successfully completes the EB-5 process, they will receive a permanent U.S. Green Card and can indefinitely live, work, and study in the United States.

Not only does the EB-5 program offer a direct route to permanent U.S. residency, it also has significant advantages for H-1B workers and other foreign nationals aspiring to settle in the United States. Unlike the H-1B visa, an EB-5 investor does not need an employer sponsorship to maintain status and reside in the United States.

Moreover, an EB-5 investor’s immediate family — spouse and unmarried children under the age of 21 — can qualify as visa beneficiaries, enabling entire families to immigrate together.

Obtain Work and Travel Authorization

As covered above, H-1B workers who lose their jobs are faced with an immediate need — find a way to maintain H-1B status or be forced to leave the United States. When an H-1B worker’s role is eliminated or they are terminated, they have roughly 60 days to find another role at the same company, a job at another company willing to sponsor their visa, or exit the United States.

Companies seeking workers with specialized skills often perform months-long searches to find the ideal candidate with a long-term future in the role. As such, 60 days is rarely enough time for either the employee or employer to perform due diligence and complete the process.

A major advantage offered through the EB-5 program is the ability to apply for adjustment of status (AOS) while residing in the United States. AOS is a process in which an individual who is already in the United States can apply for permanent resident status (a Green Card) without having to leave the country. When a foreign national files their I-526 or I-526E petition (the initial EB-5 program application), they can file the I-485 petition alongside it in a process known as concurrent filing.

Form I-485 is used to adjust an EB-5 investor’s status.

While an AOS application is pending, the foreign national can remain in the United States and 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.

A recent EB-5 investor in our rural Twin Lakes Georgia project received an EAD and travel permit in only 60 days.

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 monthly Visa Bulletin. Applicants from high demand countries, such as India and China, are frequently subject to delays in the Visa Bulletin.

However, investors from backlogged countries can avoid these delays and qualify for AOS by investing in an EB-5 project located in a rural targeted employment area (TEA).

A Quick Path to U.S. Permanent Residency

For many foreign nationals, processing times for the EB-5 visa are significantly quicker than other permanent residency alternatives.

EB-5 Visa Set-Asides

While the EB-5 program can prove to be an expedited immigration process compared to other visa types, this is not always the case for certain nations with a high volume of EB-5 applications. China and India have a historically high demand for the EB-5 visa.

However, there is a limit on how many EB-5 visas can be allotted each fiscal year; when more applications are filed than there are available visas, nations are designated “final action dates” that dictate which foreign nationals are eligible for an EB-5 visa. This process, known as “visa retrogression”, can increase EB-5 wait times by several years.

To bypass the EB-5 visa queue, investors from high-demand countries can qualify for a reserved visa. These visas are set-aside from the total annual visa pool and reserved for investors in TEA projects, meaning they are not affected by a nation’s final action date. By investing in a TEA project, foreign nationals become eligible for a reserved visa as soon as their I-526/I-526E petition is approved.

Of the total annual EB-5 visa pool, 20% is set-aside for rural TEA projects, 10% goes to high-unemployment TEA projects, and 2% is reserved for certain infrastructure projects. Because set-aside visas are allotted on a first-come, first-serve basis, applicants who wish to receive one should time their filings appropriately.

Due to the larger supply of rural set-aside visas, this category is the best option for Chinese and Indian investors.

How to Qualify for the EB-5 Visa

To qualify for a permanent U.S. Green Card through the EB-5 program, one must satisfy the following three requirements:

• Invest the required minimum investment amount;
• Invest in a qualifying new commercial enterprise (NCE);
• Create at least 10 jobs for U.S. workers.

The required minimum investment amount depends on the location of the chosen EB-5 project. Standard projects require an investment amount of $1,050,000, whereas projects located in TEAs require a reduced investment of only $800,000.

Investors should be aware that they will likely accrue additional costs throughout the EB-5 process, such as regional center administration fees, filing costs, and attorney fees.

USCIS defines an NCE as, “…any for-profit activity formed for the ongoing conduct of lawful business”. This definition does not include noncommercial activity, such as owning and operating a personal residence. NCEs can be publicly or privately-owned and can be structured in various ways, such as: sole proprietorship; limited or general partnership; holding company; joint venture; corporation; business trust; and limited liability company.

Most EB-5 applicants invest in real estate development projects.

Job creation is crucial to the success of an EB-5 investment. If a foreign national fails to create enough jobs by the time they file their I-829 petition (the final step of the EB-5 process) they will most likely not receive a permanent Green Card. EB-5 job creation differs greatly between investment types, with regional center investment widely hailed as the much more flexible option when it comes to employment generation.

Getting Started With EB-5 Immigration

Not only is the EB-5 program considered one of the fastest routes to a U.S. Green Card, but it can be a valuable lifeline to H-1B workers seeking a way to maintain status. Moreover, unlike the H-1B visa, the EB-5 visa offers a direct route to permanent U.S. residency and even U.S. citizenship further down the line. However, the EB-5 immigration process requires a significant investment of both time and money and presents certain risks. Investors should consult an immigration attorney and carefully research and consider all aspects of the program before making an investment.

For further information on getting started, we invite you to schedule a free consultation with EB5AN.