H-1B Holders Face Risks Under Second Trump Administration—EB-5 Offers a Solution

Are you an H-1B visa holder or applicant? Are you worried about what might happen to you under the second term of President-elect Donald Trump?

Many foreign nationals are—especially skilled workers from India, who make up the bulk of H-1B visa holders.

The first Trump administration already attempted to restrict this non-immigrant work visa program. He and his allies have announced they intend to revisit such cuts. In addition, H-1B workers faced a volatile job market during the Biden administration, with tens of thousands of H-1B visa holders having been laid off.

No one can say for sure what will happen to those who want to keep living and working in the United States under this program. However, it’s smart to prepare for the worst and have a more secure option in place.

H-1B workers and their qualified family members have another pathway to residing in the country—permanently. You can reduce your uncertainty and remain in the United States by investing in a U.S. business.

In this article, we’ll explain how foreign workers can avoid the risks posed by Trump’s H-1B plans and obtain Green Cards via the EB-5 Immigrant Investor Program.

Understanding the H-1B Program and the Potential Changes to It

How Does the H-1B Program Work?

Since its inception, the H-1B program has allowed hundreds of thousands of highly skilled foreign nationals to contribute to the technology, engineering, and healthcare sectors in the United States.

To gain an H-1B visa, a foreign national must be sponsored by an employer to work in the United States. The only jobs open to foreign nationals wishing to pursue this route are those known as specialty occupations, which have strict criteria regarding how they can qualify, such as the complexity of the job or the requirement of at least a bachelor’s degree.

A recipient of this temporary work visa typically stays in the United States for three to six years, though it is a dual-intent visa, meaning H-1B visa holders can apply for an immigrant visa.

H-1B Changes Under the First Trump Administration

The first Trump administration revamped immigration policy and hindered entry-level H-1B workers. It directed the Department of Homeland Security to reduce alleged H-1B visa abuse by hiring only the best-paid and highest-skilled foreign national employees.

As part of these efforts, the administration set wage requirements beyond what most employees in those areas earn. It also further restricted the occupations that could qualify.

Federal judges eventually struck down both policies, but not before the policies had increased the application denial rate.

Current and Future Challenges

Prospective applicants still face stricter approval requirements than H-1B applicants did a decade ago. The annual cap of 85,000 H-1B visas and ferocious competition for the remaining visas has made the H-1B application process function as a lottery system.

Additionally, trying to renew an H-1B visa is risky in the current volatile job market. Mass layoffs of H-1B holders since 2022, even among tech giants, show that H-1B holders don’t have the job security they might have once believed.

Notably, some in Trump’s circle want to go further than combatting illegal immigration—they have said they are considering stricter eligibility requirements, a dramatic overhaul, or even termination of the H-1B program.

What Will These Changes Mean for H-1B Holders and Applicants?

If the second Trump administration follows through on its rhetoric, H-1B holders and applicants could see a variety of changes that make their lives even harder.

Program cuts could increase visa backlogs and also deter applications and hiring under the H-1B program. Stricter enforcement of compliance measures and expanded vetting of applicants would create headaches for applicants, holders, and sponsoring employers alike, making it all that much more difficult, and therefore unlikely, for people to pursue the program. Furthermore, the administration might harm companies that hire foreign workers under the H-1B program by auditing them more frequently.

Since Indian nationals currently make up about 75% of H-1B visa recipients, all of these measures would be especially harmful to this population and the companies that rely heavily on them.

The tech industry and other sectors that are most dependent on H-1B talent would face greater turmoil, adding to the challenges of working in those sectors for approved H-1B applicants.

Fortunately, there is an alternative pathway to residence in the United States, one that is a better fit for some skilled professionals.

What Is an EB-5 Visa?

Since 1990, the EB-5 Immigrant Investor Program has allowed foreign nationals and eligible family members to live and work in the United States permanently. The program has long enjoyed bipartisan support as one of America’s immigration priorities.

To get an EB-5 Green Card, an applicant must make a qualifying investment in a U.S. business. This investment needs to create at least 10 full-time jobs for American workers that last for at least two years, and the investment must similarly remain “at risk” for two years.

As many Indian investors have discovered, EB-5 is a relatively fast and straightforward pathway to lawful permanent residency in the United States.

Benefits of Lawful Permanent Residency

Approved applicants get to live, work, and travel freely in the United States. And they may receive a variety of other benefits associated with lawful permanent residence, including the following:

• Access to the U.S. healthcare system.
• Access to social programs like Medicare and Social Security.
• Access to the U.S. education system and lower tuition fees than what foreign students pay.
• A better job market access and employment prospects.
• A pathway to U.S. citizenship.

Why H-1B Workers Should Invest in an EB-5 Visa

An H-1B worker can receive substantial benefits by switching to the EB-5 program.

Gain Employment Options

As an EB-5 visa holder, you can work for any company without needing an employment sponsor. You could also start your own business.

Indeed, an EB-5 visa is not connected to your employment status, so you don’t even have to be employed.

In contrast, an H-1B worker who gets fired generally needs to find a new employment sponsor within 60 days. If they fail to do so, they will likely have to leave the country.

Get Green Card Approval Faster

Immigrants who already reside in the United States legally when they apply to the EB-5 program can concurrently file Form I-485 with their Form I-526E immigrant petition.

Filing these forms concurrently speeds up the adjudication process, improving your chances of getting timely approval of your Green Card(s).

Conversely, those who are physically outside the United States have to go through consular processing.

Rural EB-5 projects also benefit from priority processing, with approvals in an average of 10–12 months.

Negotiate a Higher Salary

Because their visas are not dependent on sponsorship, EB-5 applicants and their family members can negotiate higher salaries in the United States than other foreign workers.

Additionally, some companies may be willing to pay higher salaries to permanent residents since these individuals have demonstrated a commitment to building a life in the United States.

Take Your Family With You

With an EB-5 visa, you can bring your immediate family members (your spouse and unmarried children under the age of 21) to the United States. Your family members will become lawful permanent residents and will also benefit from the associated educational and professional opportunities.

Unlike the children of H-1B holders, who have to apply for their own visas after turning 21, the children of EB-5 investors can keep their Green Cards once they reach that age.

Some have wondered whether the White House will restrict family members’ visa eligibility under employment-based Green Cards as part of a shift to prioritize merit-based immigration over family-based immigration. However, previous attempts to do this have yielded minimal results, so something so extreme is very unlikely to come about.

Travel Freely

EB-5 visa holders enjoy greater travel flexibility than many other visa holders.

Most notably, EB-5 visa holders can leave and reenter the United States when they choose, as long as they remain physically present in the United States for at least six out of every 12 months.

How Does the EB-5 Application Process Work?

Thanks to the EB-5 Reform and Integrity Act of 2022, the EB-5 application process is now easier and safer for H-1B workers.

Most H-1B visa holders already live in the United States legally. As previously mentioned, this means they can apply to adjust their immigration status in the country and enjoy a speedier approval process.

Make a Qualifying Investment

One of the first and most important steps of the EB-5 application process is to ensure you can meet the minimum investment requirement.

This amount is typically $1,050,000 invested into a new commercial enterprise. It is, however, possible to qualify for a lower minimum amount of just $800,000 by selecting a project located in a targeted employment area (TEA). TEA projects are in rural or high-unemployment locations that need economic stimulus and job creation the most.

Importantly, the funds must be kept “at risk”—that is, invested in the business without being withdrawn—for at least two years for investors to meet EB-5 program requirements.

File the Right Forms

To switch from your temporary non-immigrant H-1B visa status to conditional permanent residence under the EB-5 program, submit your Form I-526E immigration petition concurrently with your Form I-485.

If you are outside the United States, you must go through consular processing and submit Form DS-260 instead.

Approved investors will receive conditional Green Cards.

Fulfill the Job Creation Requirements

As mentioned earlier, each EB-5 investor is required to create at least 10 full-time jobs for U.S. workers that last for at least two years.

If the investor meets this and the other requirements by the end of the sustainment period—or the time that their investment must remain at risk—they can apply to have conditions lifted on their residency and receive permanent Green Cards.

You should also take some time to familiarize yourself with the other steps of the EB-5 investment process.

How Can H-1B Holders Fund an EB-5 Investment?

An H-1B holder can pay for an EB-5 investment by drawing from one or several of the funding sources below:

• Personal savings accounts: This can be, for example, a savings account or a checking account.
• Retirement accounts: It is possible to withdraw from a 401k retirement account plan, but you may have to pay taxes and/or an early withdrawal penalty.
• Health savings account (HSA): HSAs are known for their tax benefits. You can get reimbursed for previous medical expenses, which will free up cash for your investment.
• Other investment accounts: Examples may include equity market investments, mutual funds, ETFs, index funds, bonds, or money markets. However, you’ll probably have to pay capital gains taxes on withdrawals.
• Property sales: This involves selling assets, including real estate investments.
• Gifts: Gifts are typically money given to you by close relatives.
• Securities-backed line of credit: This is a loan that uses investment securities (including stocks, bonds, or mutual funds) as collateral.
• Home equity line of credit (HELOC): This is a secured loan that allows homeowners to borrow from their home’s equity.
• Other loans: Investors can use other loans from other legal sources, including family and friends or financial institutions, that they have secured via their personal assets.

Because of the complexities involved in the funding process, particularly source of funds documentation, it’s wise to work with industry professionals.

Invest in Your Future With EB5AN

If you’re a qualified H-1B worker looking to preserve and extend your lifestyle in the United States, it makes sense to reach out to a reliable EB-5 firm to get Green Cards for yourself and your family. It’s also smart to consult with an experienced EB-5 immigration attorney who can help you through the process.

EB-5 applicants can choose between two investment models. They can invest directly or through an approved regional center.

Nearly all applicants pick the regional center investment model, as it has fewer responsibilities, provides greater professional support, and minimizes financial and immigration risk.

This is where EB5AN comes in.

EB5AN has helped more than 2,300 families from 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.

Book a free call with us today to learn more about how you can become a Green Card holder under the EB-5 program.