Here’s why H-1B Visa Holders are applying for EB-5

The ascendance of the Trump administration has seen the uncertainty of the H-1B visa’s future rise, turning many H-1B visa holders to the EB-5 program, particularly as an alternate pathway to US citizenship. For more background, also see our article on the EB-5 as an alternative to the H-1B visa.

The Trump administration has clearly expressed a desire for companies based in the US to hire more Americans. Further, a bill proposed earlier in the year sought to, as an incentive for these companies to hire more Americans, double the minimum salary that employers are required to pay to each H-1B visa holder.

H-1B and EB-5 Visa: what’s the difference?

While both allow entry of a foreign national into the US, the H-1B visa is known as non-immigrant status in that it that allows companies in the US to hire foreign workers, usually those that work in specialty fields such as IT engineering and medicine.

The EB-5 visa program is an immigrant investor program that gives the investor a green card in exchange for their investing of a minimum of $500,000. The funds are to be invested into a new, job-creating social enterprise.

How is EB-5 better than H-1B?

  • Being an investment program, EB-5 one does not need to hold a bachelor’s degree or higher which is a key pre-requisite for the H-1B program
  • An EB-5 application is not dependent on employment for conditional permanent residency, but only dependent on the approval of an I-526 petition approval. However, H1-B visa holders are required, for the purposes of maintaining H-1B status, to continue working for their employer
  • Applicants to the EB-5 program are not required to work in specialty fields
  • An EB-5 application is a potentially faster path to citizenship
  • EB-5 applicant’s spouse and children under 21 qualify to attain green cards
  • A H-1B applicant is required to leave the United States once they are terminated from their employment. Though the USCIS may allow the change of a H1-B holders status to another non-immigrant visa, this is likely to cause issues
  • The EB-5 investor’s application allows their spouse and any unmarried children under the 21 years of age to qualify for green cards
  • Investors in the EB-5 are not required to live by their investment and can therefore live, work and also school pretty much anywhere in the US; they are also not required to be involved in the day-to-day management of their investments
  • The money required to be invest in the EB-5 visa program may be gifted to the applicant by their family members

Given the highlighted advantages that the EB-5 visa provides over the H-1B visa program, as well as the H-1B’s overall volatility, many applicants, particularly those from India, are considering an investment in the EB-5 program over the H-1B program.

What do I have to do to get started with the EB-5 investment program?

Potential EB-5 applicants are encouraged to get started with their investment by consulting a suitably qualified immigration attorney.

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EB-5 Program Update:

The EB-5 Program has lapsed. The US Congress is discussing the legislation that authorizes the program while USCIS reviews the regulations and policies for filing. Because of the recent court ruling that reversed the 2019 Modernization regulations, the investment level has shifted temporarily from $900,000 back to $500,000.

If the program is reauthorized before the regulations are updated, there may be another window of opportunity to file at $500,000.

LCR expects the program to be reauthorized in February 2022, and continues to work with international families that want to explore alternative residency options.

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