Layoffs, long waits and lost time: Why more H-1B holders are turning to EB-5

The H-1B visa is a powerful, transformational visa that is part of an individual's journey to a green card. Earning an H-1B is often wonderful news. This visa is subject to a lottery, and winning that lottery has become more competitive by the year. The H-1B can grant security to individuals who have studied in the United States and are completing either the one-year optional practical training (OPT) period or three years if in a STEM field. 

After being selected for an H-1B, however, uncertainty lurks right around the corner. Layoffs and termination of employment, with no significant opportunities to get offers from other employers and begin a new H-1B, can impact an individual’s immigration journey. During the uncertain period of layoffs and transitioning jobs, if an H-1B visa holder is not on a path towards obtaining permanent residence, the ability to extend the H-1B visa beyond six years is out of the question. Even in cases in which one can effectively manage the process to stay longer than six years on the H-1B, the next stage, that of obtaining the green card, can take up to 15-20 years for Indian nationals. 

The EB-5 visa is a way out of this uncertainty. Many H-1B visa holders have stayed long enough in the United States to acquire homes with equity or stock options that vest. These H-1B visa holders are very successful and deserve every achievement that comes their way. They should be proud of their successes. 

This wealth has a far more tangible immigration benefit for them too: it may enable them to find a quicker path to getting permanent residence in the United States. This wealth can be used, at least partly, to secure a green card in approximately two years, a far cry from the 15-20 years of uncertainty that they may face if they seek to qualify for a green card through employment.

And the EB-5 program is not just for H-1B visa holders. Those on an H-1B, L-1B, or an O-1 can also consider the EB-5 program. It can give them some certainty in an otherwise uncertain permanent residence process. 
 
The nuts and bolts of the EB-5 process are as follows. An individual uses the wealth that they accumulated while working on an H1-B visa (or another non-immigrant visa) to invest in the United States. The easiest way to do this is by investing $800,000 in a regional centre, an entity approved by the Department of Homeland Security to undertake major projects in the United States. Although there is some risk, as with any investment, the regional-centre investment is generally very safe.  

Selecting the regional centre in which to invest is based on some simple factors. One major factor is evaluating the centre's past EB-5 projects and successes, both in completing the projects and in enabling the investors to get green cards. 

Another option to secure an EB-5 green card is to invest directly in a business that a person wants to create. This is a far more challenging process when compared to the regional centres. In the direct investment process, there are very few EB-5 cases that are applied for and even fewer cases that are approved. This is in part because an investor takes on the responsibility to create ten jobs for ten United States citizens. This involves expenses related to employing ten citizens, making this option challenging and uncertain. 

The EB-5 investment in a regional centre is a great option for H-1B visa holders experiencing uncertainty and prolonged waiting times. Their ability to apply for and receive a green card has been made even easier by sweeping reforms to EB-5 regulations. These reforms, passed into law in March 2022, have created a reserved category, putting investors on a fast track to get green cards within two years. 

As H-1B visa holders confront long wait times and a lack of freedom in the job market, an EB-5 investment may be just the answer they are looking for. This investment can get them a green card and accelerate their immigration journey in the United States. 

The authors are the Founder & Attorney at Law at the Law Offices of Nadadur S. Kumar and an Attorney at the same firm, respectively. Views expressed are personal.