How EB-5 Can Help Indian H-1B Workers Avoid an Immigration Ban

The H-1B visa has long been the primary employment-based immigration route for Indian professionals in the United States. Predominantly employed in the tech sector, Indians constitute the largest portion of the H-1B workforce. According to a recent report released by the Department of Homeland Security (DHS), more than 72% of the total H-1B visas issued in FY 2023 were granted to Indian nationals.

However, the limitations of this system—ranging from the unpredictability of the H-1B lottery to severe restrictions on residency and employment of H-1B workers and their dependents—have made long-term residency a highly uncertain prospect for many deserving candidates.

The situation has been further aggravated by recent waves of job cuts and ongoing discussions about potential immigration restrictions. Today, thousands of Indian H-1B professionals live in fear of losing their employment and lawful status or, worse, facing an immigration ban due to unauthorized stay.

In this context, the EB-5 program presents a viable alternative for Indian H-1B workers seeking permanent residency in the United States. In contrast to the decades-long waiting times in other employment-based categories, the EB-5 program is one of the fastest ways for Indian citizens to obtain U.S. Green Cards and overcome the uncertainties of a temporary status.

This article explains how the legal status of H-1B workers is perpetually at risk, what consequences they might face due to an unlawful presence, and why Indian professionals must consider the EB-5 program to safeguard their future in the United States.

How H-1B Workers Might Accrue Unlawful Presence

The H-1B visa is a nonimmigrant “dual intent” visa, i.e., it allows H-1B workers to pursue a Green Card, but the visa itself is temporary and directly linked to the employment status of the visa holder.

H-1B Visa Conditions

H‑1B workers can live and work in the United States under restricted conditions tied to a particular employer, a specific job role, and for a limited time. This means an H‑1B worker is only authorized to work for the sponsoring employer and in the specific role outlined in the petition. To change employers or jobs, the new employer must file a new H‑1B petition before the worker can legally begin employment with them.

The maximum period an H‑1B visa holder may remain in the United States under the visa is generally six years. Extensions beyond six years may be available if the worker has an approved immigrant petition or has taken steps toward permanent residency.

Termination of Employment

In order to maintain legal status, H-1B workers must continue to work for the employer sponsoring their visa. As soon as an H-1B employee’s job is terminated (either voluntarily or involuntarily), they become “out of status.”

However, U.S. regulations provide a 60-day grace period during which the worker can seek new employment, apply for a change of status, or make arrangements to depart the country. This grace period does not extend the H‑1B visa validity, but it offers them a limited window to avoid accruing unlawful presence, which can lead to a re-entry ban.

Unlawful presence starts to accrue for H‑1B workers if their employment ends and they fail to secure new sponsorship or file for a change or adjustment of status within the 60‑day grace period.

Consequences of Unlawful Status

Once the 60-day grace period expires, each day spent in the United States without valid status counts as unlawful presence, which can potentially lead to deportation and adversely affect a foreign national’s future immigration benefits and applications.

If an individual accrues more than 180 days but less than one year of unlawful presence and then voluntarily departs from the United States, they may face a 3‑year ban on re-entry.

Accumulating one year or more of continuous unlawful presence triggers a much longer ban, barring re-entry to the United States for 10 years.

Staying on an unlawful status can also lead to deportation proceedings, which may result in forced removal and additional legal barriers to returning to the United States in the future.

EB-5 Offers Greater Stability to H-1B Workers

Given the volatility of the U.S. job market and the uncertainties tied to the H-1B visa, Indian professionals can find a more stable route to permanent residency through the EB-5 program.

The EB-5 Immigrant Investor Program is a U.S. government initiative to boost economic growth and create jobs through foreign capital. The program allows foreign nationals to obtain permanent residency in the United States in exchange for investing in a U.S. business.

To qualify, applicants must make the minimum required investment of $800,000 for projects in targeted employment areas (TEAs) and $1,050,000 for non-TEA projects, and the investment must create at least 10 full-time jobs for American workers.

The EB-5 visa provides a direct path to a Green Card within a relatively shorter timeframe when compared to the decades-long waiting times for Indian nationals under other immigrant visa categories.

Unlike the H-1B visa, which is tied to employer sponsorship, the EB-5 visa allows individuals to secure a Green Card independently, eliminating any concerns about job loss, visa renewals, or employer dependency.

The benefits of an EB-5 visa also extend to the investor’s spouse and unmarried children under 21, allowing them to live, work, and study in the United States without requiring separate work or study visas. With an EB-5 Green Card, H-1B workers and their families can freely work toward a secure future in the United States without having to worry about their visa status or any other restrictions.

They also become eligible to apply for U.S. citizenship within just five years of receiving their Green Cards.

H-1B Families Can Get Green Card Benefits Within Weeks

The EB-5 program has an excellent provision called concurrent filing for applicants who are already in the United States on valid nonimmigrant visas. This provision allows H-1B visa holders and their dependents to access key Green Card benefits within weeks of filing their EB-5 petition.

Under concurrent filing, applicants can submit Form I-485 for adjustment of status simultaneously with their I-526E petition if a visa is immediately available in their category. Once the I-485 petition is filed, the applicants enter “adjustment pending” status, which means they can continue to stay in the United States regardless of their nonimmigrant visa status.

Filing for adjustment of status also qualifies applicants to apply for an employment authorization document (EAD) and advance parole (AP). These documents are generally approved within weeks, providing EB-5 applicants the freedom to work and travel without the limitations of a temporary visa.

This provision is especially beneficial for H-1B employees facing job loss or a career transition, as it provides them the flexibility to explore new opportunities, including entrepreneurship and self-employment. It also allows them to travel internationally without requiring a new visa stamp.

Thus, with EB-5 concurrent filing, H-1B workers and their families can quickly transition toward permanent residency, enjoying the advantages of a Green Card long before it is officially approved.

Concurrent Filing May Soon Become Unavailable to Indians

Time is running out for Indian nationals who want to leverage the EB-5 concurrent filing option, as the facility is only available in categories without visa retrogression.

The unreserved EB-5 category already has a massive backlog for Indians, and the newly introduced reserved visa categories, which still have visa availability per the latest Visa Bulletin, are also likely to become retrogressed soon.

Currently, these categories are not retrogressed for any nationality, making it possible to file I-526E and I-485 concurrently and secure work and travel permits within weeks. However, the reserved visa categories are expected to go into a backlog for Indian nationals, which will eliminate the concurrent filing advantage.

Indian H-1B holders who want to benefit from EB-5 concurrent filing should act swiftly before set-aside visa backlogs begin, potentially closing this rare fast-track opportunity for a significant period.

Contact EB5AN to Secure a Fast-Track Permanent Resident Status

If you’re an Indian H-1B professional concerned about visa uncertainties, long Green Card wait times, and potential job-related immigration setbacks, you can take control of your future by participating in the EB-5 program.

By applying now, you can take advantage of concurrent filing and gain access to Green Card benefits within weeks—so you never have to worry about your legal status again.

In order to select the best EB-5 investment and sail through the complexities of the EB-5 program, investors are advised to seek help from expert EB-5 professionals.

EB5AN, a leading EB-5 firm, specializes in guiding investors through the EB-5 process and providing them with safe and transparent investment opportunities. We have helped more than 2,300 families from 70+ countries become lawful permanent residents of the United States. Our expert team has over 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.

If you’d like to know more about immigration through EB-5, feel free to book a one-on-one call with our team today.