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EB-5 Question of the Week: Is the EB-5 program a suitable option for H-1B visa holders?

Yes, the EB-5 program is a suitable option for H-1B visa holders who are looking to obtain permanent residency in the United States. This is because the H-1B visa is a temporary work visa that is subject to annual quotas and employer sponsorship, which can limit an individual’s ability to remain in the United States long-term.

By contrast, the EB-5 program offers a pathway to permanent residency that does not require employer sponsorship or a job offer. The EB-5 program grants permanent resident status to foreign investors who make a redeemable investment of $800,000 in a new commercial enterprise in the U.S. This can provide H-1B visa holders with greater flexibility and control over their immigration status, as well as the ability to pursue entrepreneurial ventures or invest in a business that aligns with their personal and professional goals.

Furthermore, the EB-5 program allows investors to obtain Green Cards for their immediate family members, including spouses and children under the age of 21. This can provide H-1B visa holders with a more stable and secure immigration status for themselves and their loved ones. With a Green Card in hand, the entire family can freely live, work, and travel in the United States.

The EB-5 program is especially attractive to H-1B holders during the current climate of tech layoffs in Silicon Valley. The number of tech layoffs experienced a dramatic increase in recent months, leaving H-1B visa holders with a 60-day grace period to find new employment or leave the homes they’ve built in the United States. By participating in the EB-5 program, immigrants no longer have to be at the mercy of their jobs for lawful status in the United States. With a Green Card in hand, families have flexibility in terms of both employment and location. They can live and work anywhere in the United States.

With reforms to the EB-5 program by virtue of passage of a new law called the EB-5 Reform and Integrity Act (RIA) in March 2022, the EB-5 program is now a more suitable option for H-1B visa holders given the option of concurrent filing. Concurrent filing allows families to live and work in the U.S. while they await the adjudication of their EB-5 applications. It is the process of filing the investor’s I-526E petition and their I-485 application for adjustment of status at the same time. The I-526E petition is the first step in the EB-5 process, where the investor must demonstrate that they have invested the required capital in a qualified U.S. business and that the investment has created or will create at least ten full-time jobs for U.S. persons.

Once the I-526E petition is approved, the investor can then file an I-485 application for adjustment of status, which is the next step in the EB-5 process. The adjustment of status application allows the investor to adjust their status from a nonimmigrant to an immigrant and obtain their Green Card, allowing them to live and work in the United States on a permanent basis. Concurrent filing of the I-526E and I-485 applications can help expedite the EB-5 process and minimize the amount of time that the investor needs to wait to obtain their Green Card. Additionally, concurrent filing can provide the investor with greater flexibility and certainty, as they can begin living and working in the United States while their I-485 application is being processed. With concurrent filing, investors can receive both employment authorization and a travel permit while they are waiting for their EB-5 application to be processed by the United States Citizenship and Immigration Services (USCIS).

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