Compare Short-Term Business and Leisure Visit (B1/2 Visa) with the EB-5 Investment Green Card Program

By Esther Wong

On November 10, 2014, the White House issued a press release confirming the new reciprocity agreement with China to increase the validity of short-term tourist and business visas issued to each other’s citizens from one to ten years – the longest validity possible under U.S. law – and increase the validity of students and exchange visas from one to five years. The United States began issuing visas in accordance with the new reciprocity agreement starting November 12, 2014. It is important to note that the new agreement does not change rules related to the period of authorized stay for B1 business visitors (typically 3 months), B2 visitors (typically 6 months) or the duration of the student or exchange visitor programs for F, J, or M visas.[1]

The United States extending the reciprocity agreement with China to increase the duration of business and tourist visas will allow many Chinese citizens to come to the United States to conduct short-term trips for business and leisure purposes. The reciprocal extension of visa validity to 10 years for short-term business and tourist travel between China and the United States will increase travel and exchange, enhance mutual understanding between our countries, and benefit our economies by increasing the ease of trade and investment. Currently, 10 years is the longest visa validity possible under U.S. law. This new arrangement will be more convenient and less costly for travelers within the 10-year visa validity period who will be able to avoid going through the hassle of renewing the visa with the U.S. Embassy. Prior to this, Chinese and American business travelers had to apply annually if visiting the United States or China. This new agreement also underscores the U.S. commitment to promote bilateral tourism and trade and increase opportunities for people-to-people engagement.

More importantly, we must distinguish the term of visa given and the allowed stay given by the U.S. Customs and Border Protection (USCBP) as well as understand the purpose of the B-category nonimmigrant visa (NIV). By holding the 10-year B-category visa does not mean the travelers could stay up to 10 years in the U.S. without leaving the U.S. The visa allows the travelers to enter the U.S. to fulfill the business and tourist visit. However, it is worth to note the benefits of this new visa validity extension arrangement and the purpose of the B-category visa. [2]

(1)   Travelers can travel as many times as possible so long as the visa is valid and they will not be required to obtain new visas prior to returning to the United States;

(2)   Travelers may enter up to 6 months of stay depending on the purpose and nature of the trip purpose told to the USCBP. Normally for business purpose, the stay allowed will be 3 months and 6 months of stay will be allowed for leisure visit;

(3)   Travelers are required to leave the U.S. before the expiration of the authorized stay given by the USCBP stated in their Form I-94 Arrival-Departure card;

(4)   Travelers are to fulfill the purpose of the trip but are not allowed to work for any U.S. organizations for compensation or not for compensation;

(5)   Travelers are not allowed to stay in the U.S. permanently, go to the public school, go to private college for education, and work for U.S. company.

Since the announcement of November 10, 2014 press release, many travelers from China questioned the usability of the EB-5 investment green card program whether or not it is still worth going through the process of investment to acquire the right to stay permanently in the United States.

Employment-based Fifth Preference (EB-5) program allows permanent residency for investors who, after Nov. 29, 1990, invest $1,000,000 in a new commercial enterprise that employs 10 United States Citizens or authorized immigrant workers full-time and engage in the business through day-to-day management or policy formation. The $1,000,000 investment requirement can be reduced to $500,000 if the investment is in a targeted employment area (i.e., a rural area of less than 20,000 population or an area which has experienced high unemployment of at least 150% of the national average). In addition to this “basic program” there is a Regional Center Pilot Programs where any economic unit, public or private, engaged in the promotion of economic growth, improved regional productivity, job creation and increased domestic capital investment where job creation requirements can be relaxed through direct or indirect employment can also qualify for EB-5 Investment Green Card.

For Chinese citizens who intend to stay in the United States permanently and enjoy the privileges of a Lawful Permanent Residence, EB-5 might be a choice to fulfill their immigration goals. However, to invest in the EB-5 program requires the investors to plan ahead. Investors have to go through their assets evaluation to get the lawful source of funds determined in order to invest in the program. In addition, the investors will need to ensure diligent checks on the EB-5 projects are performed before an investment decision is made, be it a direct-investment or Regional Center affiliated project. For investors who plan to participate in the U.S. EB-5 program, it is better advised to seek professionals in the field to determine the risks involved, time frame incurred, and research on the lifestyles in the U.S. to fit the family’s immigration goals. Many investors (ranging from 40 to 55 years old) plan to participate in the EB-5 program are to pave the children’s future education and their cultural adjustment to the western countries at their young age. With the participation in the EB-5 program, both investors and their children will acquire permanent residency and adjust to the America culture at the onset of the grant of their permanent residency. Many of these children are being educated and adjusted to the America culture, and they demonstrate competitiveness in the work market. In comparison to the international students who go to the local U.S. colleges using F-category visa will strive to compete in the U.S. work market upon graduation and battle to get the H-1B nonimmigrant specialty worker visa, not to mention the employer’s reluctance to go through the vigorous H-1B nonimmigrant specialty worker visa sponsorship process.

In fiscal year 2016, USCIS received nearly 233,000 H-1B petitions during the filing period, which began April 1 , 2015, including petitions filed for the advanced degree exemption. On April 13, 2015, USCIS used a computer-generated random selection process, or lottery, to select enough petitions to meet the 65,000 general-category cap and the 20,000 cap under the advanced degree exemption. USCIS will reject and return all unselected petitions with their filing fees . Based on the number of cases received for processing and the congressional approved cap, candidates who filed a legitimate petition would only get 1/3 of the chance being selected for processing. The unselected candidates who are prima facie bachelor's or master's degree holders will need to leave the U.S. upon the expiration of their student status or student optional practical training period. This might not be the best option for many international students. Therefore, it is ultimately a call of the investor and his/her family whether planning to immigrate and live permanently in the U.S. is the family’s immigration long-term goals.

To sum up, some of the privileges of becoming a U.S. Lawful Permanent Residence are worth noting here:

(1)  The children may go to U.S. public school for education as part of government program;

(2)  The children may go to the U.S. colleges and enjoy the U.S. in-state tuition fees (which is closed to 3 times lower than nonresidents tuition fees);[3]

(3)  The investor and his family members may immigrate to the U.S. as LPR and may reside permanently in the U.S.;

(4)  Though the LPR may not vote in the U.S., they may choose to become U.S. Citizen after 5 years of becoming LPR;

(5)  LPR is authorized to work in the United States legally;

(6)  LPR may choose to start a business on their own and actively operating the business.

Understanding Chinese citizens comprise the largest group of foreign investors in the United States, it is ultimately the citizen’s state of mind to determine the visa feasibility. If they intend to stay here permanently and enjoy the beauties of western living lifestyles and education in the U.S., they may choose to explore EB5 program. In contrast, if the citizens are here mainly for short-term business or tourist visits, U.S. Congress’s out of press reciprocity agreement extending B-category visas for the Chinese citizens is a good way to proceed.

[1] Office of the Spokesperson, Washington, DC on November 10, 2014. http://www.state.gov/r/pa/prs/ps/2014/11/233904.htm

[2] 9 FAM 41.31, U.S. Department of State Foreign Affairs Manual Volume 9 Visas.

[3] University of California, Admissions tuition and cost of attendance. http://admission.universityofcalifornia.edu/paying-for-uc/tuition-and-cost/

Esther Wong

Esther Wong

Esther Wong is an immigration attorney and also the founding attorney of the Law Offices of Esther Wong, located in Alhambra, California. Attorney Wong assists investors, especially those who reside in China, by helping them evaluate their legitimate source of funds and also by resolving any issues involved in the filing of I-526 and the I-829 Removal of Conditions. Attorney Wong is fluent in English, Chinese Mandarin and Cantonese which allows her to effectively communicate with her international clients and represent them successfully. After obtaining her law degrees, attorney Wong was admitted to practice in both New York and California.