Every year, thousands of individuals apply for the H-1B visa lottery, hoping to gain authorization to work in the U.S. However, due to the limited number of available visas and high demand, many applicants are unsuccessful in obtaining an allotment. If you find yourself in this situation, you must carefully weigh your options and understand the alternatives available.
In this article, we will delve into the details of the H-1B visa and explore how those who missed the lottery can successfully continue their U.S. immigration journey.
What Is an H-1B Visa?
What Is an EB-5 Visa?
- EB-5: An Alternative to H-1B
- What EB-5 Benefits Are Available for Individuals Who Did Not Win The H-1B Lottery?
- How Do I Start an EB-5 Application?
Get a Green Card With EB5AN
What Is an H-1B Visa?
The H-1B visa allows foreign workers in specialty occupations to be temporarily employed in the United States. To qualify, applicants must secure sponsorship from U.S. employers offering jobs categorized as specialty occupations by the United States Citizenship and Immigration Services (USCIS). These occupations typically require a higher academic degree or unique and complex skills.
However, the program has historically faced many challenges due to high demand, limited quotas, and restrictions on family members’ employment. Each year, Congress sets a cap on the number of available H-1B visas, leading to a lottery system for selection—and the most recent lottery closed on April 1, 2024. The current cap for H-1B visas is set at 65,000 visas per year.
The H-1B Visa for F-1 Students
The F-1 visa (student visa) is for prospective international students pursuing academic programs at accredited U.S. universities or colleges. The chosen educational institution must have official authorization from the U.S. government to admit international students and the applicant must be pursuing a degree, diploma, or certificate program.
F-1 is a nonimmigrant visa that doesn’t qualify as dual intent, which means it doesn’t provide a pathway to lawful permanent residence in the United States. This is why many F-1 students eventually seek an alternative visa status.
OPT: STEM vs. Non-STEM
Students on an F-1 visa, especially those majoring in science, technology, engineering, and mathematics (STEM), are eligible for special privileges and benefits. Under the Optional Practical Training (OPT) program, F-1 students are permitted to work in the U.S. for up to 12 months after completing their studies.
STEM students may be able to extend their OPT by up to 24 months, providing them with additional time to secure employment or apply for alternative visas like the H-1B. Non-STEM students, on the other hand, have fewer post-graduate employment opportunities. Without the 24-month OPT extension, finding an employer who will sponsor them for an H-1B visa could be even more challenging.
Many F-1 visa holders turn to the H1B lottery to remain in the U.S. as nonimmigrant workers after graduating. Holders of postgraduate degrees can also take advantage of an additional cap of 20,000 visas.
However, whether STEM or non-STEM, students who complete OPT and do not have an alternative visa must return to their home country—or risk accruing unlawful presence in the United States. Foreign nationals in this situation should consider applying for immigrant visa categories for a safe and direct route to permanent resident status, such as the EB-5 Immigrant Investor Program.
What Is an EB-5 Visa?
EB-5 is a U.S. government-sponsored investor program that allows foreign nationals to obtain permanent residency (Green Card) by making a qualifying investment in a U.S. commercial enterprise.
To be eligible for the EB-5 program, an individual must make a minimum investment in a new commercial enterprise in the U.S. and create or preserve at least ten full-time jobs for qualified U.S. workers. The minimum investment amount is typically $1.05 million, but it is reduced to $800,000 if the investment is made in a targeted employment area (TEA), which is defined as a high-unemployment or rural area.
EB-5: An Alternative to H-1B
While other aspects of the U.S. immigration system, such as the H-1B lottery, rely heavily on chance, permanent residency applicants have the most discretion under the EB5 program. There are several reasons as to why the EB-5 could be a better option than the H-1B visa:
Self-Sponsorship Allowed
The EB-5 program eliminates the requirement for an employer to sponsor an applicant for a green card; this contrasts with the H-1B visa, which requires sponsorship.
Limited Quota, No Lottery
The H-1B visa is difficult to obtain and fraught with uncertainty because it relies on annual quotas and a lottery system. While the EB-5 program has an annual visa quota, too, it does not involve a lottery, making the process more predictable.
Path to Permanent Residency
The EB-5 program provides a direct route to permanent residency for the investor and their immediate family members (spouse and unmarried children under 21). H-1B visas, on the other hand, are for temporary employment and do not normally result in permanent residency.
Flexibility in Location and Business
EB-5 investors can invest in a project wherever they see fit, with no location or industry limitations.
No Education Requirement
An EB-5 visa does not require any specific level of education or work experience, which opens the door to a broader range of investors. The H-1B visa is typically extended to highly qualified individuals with advanced degrees.
To sum up, the EB-5 program is an attractive alternative to the highly competitive and capped H-1B visa.
What EB-5 Benefits Are Available for Individuals Who Did Not Win the H-1B Lottery?
Prior to the EB-5 Reform and Integrity Act of 2022 (RIA), investors could not file their I-485 (Application to Register Permanent Residence or Adjust Status) until their I-526E (Immigrant Petition by Regional Center Investor) was approved. This resulted in restrictions on travel and other activities for prospective EB-5 investors already within the U.S. on non-immigrant visas. They were also unable to apply for work authorization until the adjudication of the I-526E was finalized. However, with the new changes introduced by RIA, waiting for approval is no longer necessary. Benefits of this change include:
Advance Parole
By filing the I-485 concurrently and receiving advance parole, investors can usually leave the country for short to medium periods and return without having to keep an underlying visa status or abandon an adjustment.
Employment Authorization Document (EAD)
After filing I-485, a prospective investor can apply for an EAD without any restrictions. Unlike the H-1B visa, there are no limitations whatsoever. You can open a bank account or get a Social Security Number with an EAD.
The main benefit of concurrent filing is that it allows one to start life in the U.S. with much more certainty, as USCIS policy allows I-485 applicants to stay in the country until adjudication.
How Do I Start an EB-5 Application?
Any immigrant investor must follow two crucial steps before initiating the EB-5 process:
- Find an EB-5 immigration attorney who will:
- Review, file, and prepare your source of funds information.
- Submit your I-526E petition and supporting documents.
- File your applications concurrently (if applicable).
- Choose a reputable regional center with a low-risk project.
In general, EB-5 investors should duly consider regional centers and immigration attorneys with experience in the matter at hand. The EB-5 process can be complex, so investors must find commercial partners and attorneys with whom they can forge long-term relationships.
Get a Green Card With EB5AN
When you lose out on an H-1B, it’s essential to think about other ways to stay in the U.S. Gaining a thorough understanding of the various pathways and consulting with immigration specialists can help you navigate the U.S. immigration system and make sound decisions about your future.
EB5AN has helped more than 2,300 families from 60 countries relocate to the U.S. as lawful permanent residents. If you need more information about how to apply for the EB-5 program or would like our opinion on your application, feel free to book a one-on-one call with our EB-5 team.
