For international students studying in the United States, the optional practical training (OPT) period offers an opportunity to gain real-world experience and enhance their professional skills.
However, once OPT ends, many students face uncertainty about their future employment opportunities, particularly if they are dependent on a work visa like the H-1B. And as a result, they also face uncertainty about whether they can remain in the United States.
One option that provides a pathway to permanent U.S. residency—and numerous career and academic opportunities—is the EB-5 Immigrant Investor Program, which allows foreign nationals to obtain a Green Card by investing in a U.S. business.
In this article, we will explore how international students on OPT can transition to an EB-5 Green Card, breaking down the key steps, funding strategies, source of funds documentation, and timing considerations.
Understanding OPT and the STEM OPT Extension
What Is the EB-5 Program?
Steps to Transition From OPT to EB-5
EB5AN Can Guide You Through This Process
Understanding OPT and the STEM OPT Extension
OPT is a work authorization program for international students in the U.S. on an F-1 visa. It allows students to work in the U.S. for up to 12 months in a field related to their degree. While OPT can be used before or after graduation, students must apply for it within specific timeframes (usually up to 90 days before the program end date and up to 60 days after.)
When and how you participate in your OPT will affect your future ability to receive additional OPT.
If you have already received one year of part-time (20 hours per week) pre-completion OPT, the total length of full-time OPT still available for your post-completion OPT would be reduced by six months.
If you have already received one year of full-time (40 hours per week) pre-completion OPT, the total length of full-time OPT still available for your post-completion OPT would be reduced by one year—or the entirety of your post-completion OPT. In other words, you would not be entitled to any period of post-completion OPT employment authorization.
STEM OPT is an extension of the regular OPT for students who have completed a degree in a designated STEM (science, technology, engineering, and mathematics) field. This extension grants an additional 24 months of work authorization, allowing STEM graduates to work in the U.S. for up to 36 months total. To qualify for STEM OPT, students must work for an employer enrolled in the E-Verify program and meet specific reporting requirements.
What Is the EB-5 Program?
The EB-5 Immigrant Investor Program is designed to attract foreign investment in U.S. businesses. Through this program, investors and their immediate families (spouse and children under 21) can obtain U.S. permanent residency, also known as a Green Card.
To qualify for the EB-5 program, applicants must invest at least $1,050,000 in a new commercial enterprise in the U.S. Alternatively, if the business is located in a qualifying targeted employment area (TEA), the minimum investment is reduced to $800,000.
The key benefit of the EB-5 program for international students is that it offers a direct path to permanent residency without the need for a specific job offer or employer sponsorship. This is especially valuable for students who may not want to be dependent on a work visa, such as the H-1B, which has a lottery, annual caps, and long processing times.
Other advantages over the H-1B visa include securing permanent residency in the U.S. and gaining the freedom to pursue any career or location in the U.S.
Steps to Transition From OPT to EB-5
Transitioning from an F-1 visa or OPT/STEM OPT is a long process with multiple steps.
While we explain this process, it is still critical for you to be properly informed. So to mitigate any potential risks, we highly recommend working with an experienced EB-5 immigration attorney who will be able to help you through this process and guide you past any challenges specific to your case.
Eligibility for Adjustment of Status
To be able to apply for an EB-5 visa when you are in the U.S. for the duration of your F-1 visa or OPT/STEM OPT, you must be eligible for adjustment of status. The criteria for eligibility are as follows:
- Properly filing Form I-485, Application to Register Permanent Residence or Adjust Status.
- Being inspected and admitted or inspected and paroled into the United States.
- Being physically present in the United States at the time you file your Form I-485.
- Being eligible to receive an immigrant visa based on an approved Form I-526E, Immigrant Petition by Regional Center Investor.
- An immigrant visa being immediately available to you at the time you file your Form I-485 and at the time USCIS makes a final decision on your application.
- None of the applicable bars to adjustment of status applying to you.
- Being admissible to the United States for lawful permanent residence or eligible for a waiver of inadmissibility or other form of relief.
- Meriting the favorable exercise of USCIS’s discretion.
Obtaining the EB-5 Visa
Transitioning from OPT to an EB-5 Green Card is certainly feasible with careful planning. Here is a breakdown of the key steps you need to take.
Understanding the EB-5 Eligibility Criteria
The basic eligibility criteria for the EB-5 program are 1) the investment, as mentioned above, 2) the creation of at least 10 full-time jobs for U.S. workers, and 3) the investment remaining “at risk” for at least two years.
Securing the Necessary Funding
One of the most important considerations when applying for the EB-5 program is securing the required investment funds. For many international students, this may be the most challenging step. While one source is perfectly acceptable, it is very common for international investors to combine sources of funds.
Here are the best strategies for international students looking to source funds for an EB-5 investment:
- Personal Savings: If you have saved money through personal earnings or family support, this may be the most straightforward option.
- Family Support: Many applicants receive financial assistance from family members. The key is to ensure that the source of funds is well documented.
- Loans: In some cases, applicants can take out a loan to meet the EB-5 investment requirement. Crucially, loans must be secured through legal means, and the repayment terms must be transparent.
- Investments: When using them for their EB-5 investment, investors must provide documents of all owned investments or securities accounts.
Documenting the Source of Funds
One of the most critical aspects of the EB-5 application process is documenting the legal source of the funds being invested. USCIS requires detailed evidence that the money you are investing comes from legal sources.
Here is some of the evidence you need to provide:
- Bank Statements: Provide several years of bank statements showing the accumulation of the funds.
- Income Tax Returns: Show your income history through tax returns, especially if you have been working during your OPT period.
- Gift Letters: If family members are providing some or all of the funds, they must provide gift letters stating the amount of the gift and that it is not a loan. These letters should include the relationship between the donor and the applicant. You will also need to prove that the person gifting you these funds obtained them legally.
- Sale of Assets: If you have sold assets, such as real estate or investments, to fund your EB-5 investment, provide documentation of the sale, including contracts and proof of ownership.
- Employment Records: If you are using earnings from your OPT or other work, provide employment verification letters, pay stubs, and tax documents.
The goal is to establish a clear and traceable chain of how the funds were obtained legally. Be prepared to provide extensive documentation to support the source of your investment.
Investing in a Qualifying U.S. Project
Once you have secured the necessary funds and documented their source, you will need to invest in a qualifying EB-5 project. While you can invest directly, most international students (and other EB-5 investors) choose to invest through a regional center, which is a USCIS-approved organization that pools EB-5 investments into job-creating projects.
When selecting an investment project, it is essential to choose a reputable and experienced regional center. Look for regional centers with a proven track record of successful EB-5 projects and Green Card approvals.
Filing Your EB-5 Petition
Once you have completed the investment, the next step is to file your EB-5 petition with USCIS. This is done using Form I-526E, Immigrant Petition by Regional Center Investor.
Timing Considerations
During the processing of your I-526E petition, your OPT status may expire, so it is essential to keep track of your visa status and maintain lawful status in the U.S. while your petition is pending.
Also, complications can arise if an international student needs to renew their F-1 visa before receiving approval for their Form I-526E petition. If the F-1 visa is set to expire prior to obtaining conditional permanent resident status, the student may face difficulties maintaining their non-immigrant status and staying in the U.S.
Due to these complexities, it is highly advisable for the student to consult with an experienced immigration attorney before initiating the EB-5 process.
Adjust Your Status to Permanent Resident
Once your I-526E petition is approved, you can adjust your status to a conditional permanent resident if you are already in the U.S. If eligible for concurrent filing, you can save time by filing for your adjustment of status at the same time as your I-526E, and apply for work and travel permits. This way, you can benefit from employment and travel benefits even before you receive your physical Green Card.
The final step is to receive your unconditional EB-5 Green Card, which grants you full permanent residency in the U.S.
EB5AN Can Guide You Through This Process
The EB-5 program offers a promising pathway for international students on OPT who wish to stay in the U.S. permanently. While the process requires careful planning, securing funds, and documenting their legal source, the benefits of bypassing work visa limitations and obtaining long-term residency are significant.
EB5AN has helped more than 2,300 families from over 60 countries relocate to the United States as lawful permanent residents. Our expert team has more than a decade of experience, and we offer our clients first-rate, low-risk EB-5 regional center projects with a 100% USCIS project approval rate to date.
To learn more about how you can take advantage of the EB-5 program to become a lawful permanent resident of the United States, book a free call with us today.
