EB-5 Visa Blog

H-1B and other visa holders are turning to EB-5

EB5Investors.com Staff

By Anayat Durrani

Layoffs in several sectors, the changing economy and market conditions have resulted in more foreign workers on H-1B visas and other valid visa holders considering the EB-5 route. The EB-5 Immigrant Investor program can be a quicker pathway to permanent residency.

Highly skilled foreigners who come to the U.S. for work do so on H-1B visas that provide a temporary work visa. However, H-1B visas have annual quotas and require employer sponsorship, which impact a worker's ability to stay long term in the country since their immigration status is based on their work status and employer. The threat of layoffs means workers face losing their work authorization, have the hardship of finding new employment and ultimately deportation.

“The H-1B lottery that was conducted in March resulted in 758,994 valid registrations for only 85,000 available new H-1Bs for FY2024—although USCIS actually selected nearly 111,000 in anticipation of denials and rejections,” says Chad Graham, executive partner at Graham Adair, who hosts an “Immigration for HR” YouTube series with the firm’s co-founding partner.

Graham says this means there was a roughly 15% chance of selection, but nuanced by a regular lottery and an advanced degree lottery, “coupled with the fact that over half of all registrations were for individuals who were the beneficiaries of multiple registrations.”

How EB-5’s concurrent filing can help H-1B visa holders

For H-1B visa holders already in the U.S., the EB-5 investor program can be a good option to transition to permanent residency. Changing visa status from H-1B to EB-5 can be a quicker process and means H-1B visa holders do not need to return to their home country and go through consular processing.

The EB-5 program provides a route to permanent residency without employer sponsorship or an offer of employment. H-1B visa holders can concurrently file an Adjustment of Status with their EB-5 petition.  The EB-5 Reform and Integrity Act of 2022 gives H-1B visa holders the option of concurrent filing, which entails filing the investor’s I-526E petition and their I-485 application for adjustment of status simultaneously.

“The recent change in the EB-5 law indicates that many will now file to adjust status within the United States given that you can concurrently file the I-526 with the I-485, which would allow an in-country applicant to remain in the United States while the process is moving forward,” says Ray Lahoud, Esq., Member, Norris McLaughlin, P.A. and Chair, Immigration Practice Group.

Through the EB-5 program, investors can get green cards for their spouses and children under the age of 21, and can live, work and travel in the U.S. freely.

“I believe that we will see a significant number of individuals concurrently filing,” says Lahoud. 

The EB-5 option proved a better route for Abhiram Satyadev. He moved from India to the United States in 2011 to pursue his master’s degree. When he graduated in 2013, he decided he wanted to remain in the U.S., but felt the H-1B program was a tougher route.

His entrepreneur father, based in Bangalore, stepped in and invested in a real estate project in Baltimore through EB-5 Capital. In 2016, while on an H-1B, he applied for an EB-5 visa and received his green card in 2017.

Satyadev, who now works at a water utility company, wouldn’t have had access to his job without a green card.

“EB-5 is a great alternative,” says Satyadev. “I am definitely very happy that I chose the EB-5 route, and the main points to remember is doing great research and choosing the best regional center and immigration lawyers who can help you with the EB-5 process.”

L-1 and F-1 visa holders can benefit from EB-5

There are also options for those on L-1 and F-1 visas. While the H-1B and the L-1 require employer sponsorship, the F-1 requires college or university attendance. 

Graham says since the path to H-1B has become so encumbered, many companies are seeking alternatives to the H-1B. He says one of the alternatives is L-1. 

“In this instance, a company will opt to send their employee to an overseas office for at least 12 months, and then have that employee apply for an L-1 as an intracompany transferee,” says Graham.

But, Graham says the costs can prove high due to the back-and-forth relocation and may be disruptive to the employee, spouse and children.

“As for the L-1 and the H-1B, if one was to secure the EB-5 visa, then that person has lawful permanent residence and need not worry about securing a job with a specific US employer, go through the lottery process for the H-1B and the petition process that follows for the H-1B and the L-1 visas,” says Lahoud.

He says the individual can work with anyone they would like since they would have lawful permanent residence.

“The EB-5 is really not a replacement for these types of visas, other than, potentially, the F-1 visa, as then the student will not have to be restricted to one college or university, and if the EB-5 is granted, will secure permanent resident status,” says Lahoud.

Graham says some companies are relying more heavily on F-1 by finding universities that sponsor Day 1 CPT or curricular practical training. He says most schools will not provide CPT until the student has completed at least a semester.

“However, more and more alternative universities are popping up, offering Day 1 CPT, which is sort of a pay-to-play scheme. So there are often additional costs involved with these universities beyond the standard tuition costs, but it potentially enables employees who were unsuccessful in the H-1B lottery to maintain work authorization without a period of unemployment,” says Graham.

He says they don’t advise their clients to do this since it may have significant ramifications for the employee’s immigration process later on. However, it is one option being used.

“I can tell you that people are desperate and considering all options that might be available to them,” says Graham.