Generally, filing an H-1B visa application simultaneously with an I-526 petition is acceptable. However, complications arise when the petitioner tries to apply for the two visas through the same company, as both a self-employed H-1B worker and EB-5 investor. It is possible to have both applications approved through this route, but it would depend on the structuring of the applicant’s company.
H-1B Visa: Self-Employed
In this particular scenario, the biggest challenge is successfully filing an H-1B visa application as a self-employed worker. Generally, the H-1B visa applicant must demonstrate the existence of an employer-employee relationship. Acquiring an H-1B visa as a self-employed worker may be possible if the applicant owns their own company and is able to provide evidence that a separate internal party exercises control over their employment. There must be proof that the power to hire and terminate employment lies beyond the control of the applicant.
Making an EB-5 Investment in Your Own Company
EB-5 investors are permitted to make an investment in their own company. If the self-employed H-1B applicant is the owner of their company and they wish to invest in said company, they will need to make a direct investment of at least $1,050,000.
If their business is located in a qualifying targeted employment area (TEA), the reduced investment amount is $800,000. Business owners can receive a TEA designation by contacting their corresponding state agency with the business’ location/address and formally requesting a letter.
A direct EB-5 investment needs to meet the job creation requirement. Specifically, the EB5 investor must create at least 10 full time jobs, to be filled by authorized U.S. workers for a minimum of two years. Induced and indirect positions cannot count towards the employment requirement for direct investment. Furthermore, the EB-5 investor cannot count their own position towards the required job quota.
In Conclusion
While the plan at hand is not unfeasible, it certainly poses complications and there are details that need to be addressed. With their unique situation as a self-employed H-1B worker, the prospective EB-5 investor is best advised consulting an immigration attorney to discuss strategies on how to file both H-1B and EB-5 visa applications for the highest possibility of approval.
