Foreign investors living in and out of the United States who wish to pursue permanent residency here can combine the benefits of the H1-B visa and the EB-5 investor visa to live and work in the U.S. while they apply for a green card.
One specific U.S. immigration pathway uses the cap-exempt visa option offered by the H1-B program to allow foreigners to reside in the U.S. while waiting for their EB-5 visa application to be reviewed.
EB-5 specialists discussed the advantages and disadvantages of this alternative in a recent webinar hosted by EBInvestors.com, “How to combine visas for faster USA access.”
The industry professionals concur that this immigration route is suitable for individuals who wish to be in the U.S. while waiting for their EB-5 visa application to be processed, as well as for individuals already residing in the country under the H1-B visa or other U.S. visas, who need to adjust their status to attain permanent residency.
“It can be used as a stepping stone. It’s not a permanent engagement. This is maybe six months to get where you need to be,” says Trevor Anderson, the Director of EB-5 Financing at HomeFed Corporation.
Meanwhile, Marjan Kasra, founder and managing attorney of the Law Offices of Markan Kasra, LLC, points out that this alternative works thanks to the H1-B visa’s dual intent condition, which allows foreigners to temporarily live in the U.S. legally while simultaneously seeking to adjust their immigration status to obtain residency. “So, because it’s a dual intent visa, the intending immigrant could have either an immigrant or a nonimmigrant intent,” the EB-5 lawyer adds.
How does the H1-B cap exempt option work?
A successful process requires applicants to obtain a partial H1-B visa with an authorized cap-exempt organization: universities, government research organizations, nonprofit research organizations, and nonprofits affiliated with a university.
Jeff Goldman, the Founder of Goldman & Partners Immigration Law and the H1-B cap-exempt program The Build Fellowship, explains that these cap-exempt organizations are not required to wait for the H1-B lottery every March to sponsor a visa petition. They can file petitions anytime within a fiscal year, whether for a full-time position or partial work. Approval of these petitions by the United States Citizenship and Immigration Services (USCIS) could take between six and eight weeks.
After the petition is approved, the new H1-B holder can start working in the U.S. a week after receiving the new visa. Individuals in their home countries need an appointment at a U.S. consulate to change to an H1-B status, while those already living in the U.S. must file for an adjustment of status (Form I-485).
Once in the U.S., the cap-exempt H1-B visa worker can apply for a second H1-B visa, called a Concurrent H1-B, to work for a second company alongside the first employer. This second company must be based in the United States. The immigrant worker can work for another employer or create their own business, making this an advantageous option for those EB-5 investors wishing to invest in direct investments instead of regional center projects.
“As soon as you are here working on an H1-B status, any U.S. company can file a full-time H1-B to be concurrent,” Goldman adds.
These H1-B visa holders can also drop their initial partial or full-time H1-B visa job and continue working with the Concurrent H1-B option while adjusting their status to obtain the EB-5 visa.
“Now you are absolutely, legally working part-time for the [cap-exempt organization] and full-time for the company you want to work for, and this would go on until the date that you finally are able to get the conditional green card through the EB5 program,” Goldman says.
However, if the applicants stop working as H1-B visa holders, they must adjust their status through the concurrent filing mechanism. They cannot work until they obtain an Employment Authorization Document (EAD).
Qualifications for a cap-exempt H1-B visa are the same as those for lottery-related visas. Applicants must have a U.S. equivalent bachelor’s degree in a specialized field relevant to the job they are applying for and two years of related experience. This pathway also works for foreigners who do not wish to obtain an EB-5 green card but plan to live in the U.S. and work for other companies or create their businesses.
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