Why EB-5 Is a Natural Next Step for H-1B Visa Holders - EB5Investors.com

Why EB-5 is a natural next step for H-1B visa holders

EB5Investors.com Staff

By Anayat Durrani

Major layoffs by companies in the tech industry like Meta, Amazon and Lyft have left workers scrambling to find employment. The layoffs underlie a deeper problem, and that is that many of the laid off workers are H-1B visa holders and if they are unable to find a job, they will be forced to leave the U.S. However, H-1B visa holders do have another option to consider—the EB-5 investor program route.

“An H-1B employee is eligible to file for an EB-5 green card at any time,” says Darren Silver, an immigration attorney who runs Darren Silver & Associates, LLP. “As long as the H-1B employee meets the minimum requirements as an investor and has the resources available for the investment, he or she may start the process.”

Tech layoffs numbered well over 50,000 in November, according to the website Layoffs.fyi. Tech companies typically employ the most workers on H-1B visas, working as engineers or in computer science and other related fields. Workers on temporary visas can have 60 to 90 days to find new employment or will be sent back to their country.

“Under the new Reform and Integrity Act of 2022 (RIA), a person on an H-1B who is physically present in the U.S. can file for an EB-5 along with Adjustment of Status which allows them to get work and travel authorization usually within three to six months,” says Vivek Tandon, immigration attorney and CEO of EB5 BRICS, LLC. “Hence allowing them the freedom to work and live anywhere in the U.S. without employer sponsorship.”

He says the same applies to international students on F-1 visas and F-1 students working on Optional Practical Training, or OPT, in the U.S. 

The benefit of concurrent filing for EB-5

Immigration attorney Poorvi Chothani, managing partner of LawQuest, says the EB-5 investor program is a good option now for workers who are still in valid non-immigrant status

“This is because now you can concurrently file for adjustment of status (AOS) along with your EB-5 petition provided the priority date is current and the final action date for the priority date is current,” says Chothani. “The Final Action Date on the Visa Bulletin is the date when an immigrant visa is available and a green card may finally be issued. The EB-5 green card case cannot be completed (approved) unless the applicant’s priority date is earlier than the Final Action Date listed on the Visa Bulletin.”

Chothani says once the AOS is filed, a foreign national can still remain in the U.S. but may not be able to work because they would not have work authorization. 

“However, if the EB-5 applicant is eligible to file for AOS, he can also file for an EAD card and Advance Parole (AP),” says Chothani. “The EAD card when issued allows him to work and the AP allows him to travel in and out of the U.S. while his green card application is pending.”  

Impact of RIA on H-1B employees

In March of 2022, the EB-5 Reform and Integrity Act was passed, renewing the EB-5 investor program. Silver says the new RIA rules have been extremely beneficial to H-1B employees.

“Under the new rules, an H-1B employee can now file the I-526 petition and concurrently file for an Adjustment, a Travel document and also Work authorization,” says Silver.

He says the adjustment application will immediately keep the applicant in status and they will thereafter soon receive work authorization and travel authorization. He says the application package serves as a very similar function to a green card.

“An EB-5 filing is an excellent alternative for an H-1B employee,” says Silver.

He says an H-1B employee would typically need to rely on their employer to sponsor them for a green card, which he says creates significant reliance on the sponsoring employer.  

“Under the EB-5 program, the H-1B employee can pivot into a situation where they are self-petitioning. Through this process they will receive work authorization allowing them to have a much more competitive advantage in the current marketplace,” says Silver.

Also, depending on the country of birth, he says the processing times may be significantly faster under the EB-5 application.

“EB-5 is the next natural step for someone in the U.S. on an H-1B visa especially those from backlogged countries in EB-2 and EB-3 categories such as India and China where a green card could be 20 to 30 years away,” says Tandon. “EB-5 fast tracks U.S. permanent residency to two to four years for such individuals not to mention the ability to get a quick work permit that doesn’t require employer sponsorship.” 


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