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How can a H-1B visa holder apply for direct EB-5 investment?

I am employed by a company under the H-1B visa. Am I allowed to invest in a direct EB-5 project, open my own business and employ 10 U.S. citizens? Is opening one''s own business and taking a managerial role allowed for an H-1B visa holder? I will not leave my current company who sponsored my H-1B, though.

Answers

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    You can set up a business but not work in it. It is probably best for you to make a regional center investment. You could have concurrent H-1Bs, but you must be a minority shareholder so that there is a genuine employer-employee relationship and so you can be hired and fired by the EB-5 company.

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    Julia Roussinova

    Immigration Attorney
    Answered on

    You will violate the terms of your current H-1B if you open your own business and take upon an active management role, as you are not on employment authorized outside your current employer. You may invest in a direct EB-5 while taking a policy formulation role that will meet the EB-5 requirements, but someone else will need to actively manage the business for you on a day-to-day basis.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    As a foreign national on H-1B status, you can invest in a direct EB-5 project. However, as a foreign national on H-1B status, you cannot actively manage your own business.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    You can direct invest for EB-5 under H-1B status. However, you cannot operate/run or have a role in the business until your EB-5 is completed and you are either authorized for employment through a work permit (while adjustment of status is pending) or when you are a lawful permanent resident. You can hire managers to operate the business in the interim. Under H-1B you are only authorized to work for your H-1B petitioner.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    You may not work there without a concurrent H-1B, but you can set up and manage.

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    Mark AM Catam, Esq

    Immigration Attorney
    Answered on

    You will need an experienced EB-5 lawyer to advise you further. You are more than welcome to contact our office.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You can; your role in the EB-5 company would be executive and not day-to-day employment so you can meet EB-5 requirements and maintain H-1B status.

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    A Olusanjo Omoniyi

    Immigration Attorney
    Answered on

    Yes, you can certainly apply for EB-5 petition while still on H-1B visa, but you cannot open and operate a business before the EB-5 petition is approved. Also, until your EB-5 petition (i.e. I-526) is approved you can remain on your H-1B.

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    Fredrick W Voigtmann

    Immigration Attorney
    Answered on

    Opening a company and making an EB-5 investment would likely not be considered unauthorized employment. "Taking a managerial role" in the new commercial enterprise (NCE) while in H-1B status, however, would violate the terms of your H-1B status. You could hire a manager to oversee the business operations of the NCE for you until your receive your conditional lawful permanent resident status. Then you can take an active role.As long as your role is projected in the business plan, this should be acceptable to USCIS for purposes of the I-526 immigrant petition.

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    Mitch Wexler

    Immigration Attorney
    Answered on

    As an H-1B visa holder, you are allowed to have an equity stake in an unrelated business just as you are allowed to buy stock in a publically traded company. You just cannot "work" in that business until you either have your green card or an unrestricted work permit. So, to make a direct EB-5 application work while in H-1B status, the subject entity would need to be launched without your services. A manager as well as sufficient staff would need to be assembled. Keep in mind, however, that when legally permitted, you must assume a meaningfully managerial role in the entity that would create 10-plus full-time jobs within the required time frame.

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    Ying Lu

    Immigration Attorney
    Answered on

    Yes, you can. H-1B status does not prevent you from being an investor. As an investor you make the investment, share profit or receive dividends from your business, but you cannot be employed by your own business. You can hire 10 U.S. workers to work for your own business.

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    Robin J Gray

    Immigration Attorney
    Answered on

    You may invest directly in an EB-5 business, as long as the investment money is your money, properly sourced and the investment meets all of the other criteria for EB-5. You should consult directly with an EB-5 immigration attorney to represent you throughout the process and who can ensure that all facets of the EB-5 investment and process are correct.

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    Blake Harrison

    Immigration Attorney
    Answered on

    Yes, you can apply for a direct EB-5 investment as a H-1B visa holder. However, you will need to maintain your H-1B status until your Form I-526 is approved. Once approved, you will then change your status from the H-1B to a temporary green card holder, at which point you can begin earning income from the EB-5 company.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, someone in H-1B visa status is clearly allowed to file an EB-5 Investor Petition on Form I-526. However, if one wishes to do so based upon a direct investment in their own business which will employ 10 U.S. citizens, there has to be a clear distinction between being an investor in your own business versus working and managing your own business. Your current H-1B visa status is specific to your current employer. Under limited circumstances, should you establish a bona fide business, that business could file a concurrent H-1B allowing you to work for both businesses. However, the fact that you are the owner of that business, there may be issues in obtaining an approval that would allow you to work directly in your own business. Specifically, an H-1B visa status allows you to work specifically for the H-1B petitioner and not for your new business.

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