Questions and Answers > EB-5 Requirements

How does the process of switching from a U.S. H-1B visa to an EB-5 visa work?

If somebody has a U.S. H-1B visa and decides to apply for an EB-5 visa, can he continue to work in the same position for his H-1B until the I-526 petition and work authorization are approved? Then, after the work authorization is approved, can he change his status? How does this process work? If this process DOES work, can he earn any revenue from the EB-5 project he invests in?

Answers

• Julia Roussinova

  Immigration Attorney

  Answered on October 4, 2017

  You may certainly file I-526 petition as an EB-5 investor and adjust status in the U.S. to a green card holder if you remain in a valid underlying H-1B status while your I-526 petition is pending and until it is approved. You may receive profit distributions from an EB-5 entity (new commercial enterprise) as a passive EB-5 investor if you do not engage in an active business management of the EB-5 entity, thus violating the terms of your H-1B visa. Please consult an experienced EB-5 immigration attorney.

• Dale Schwartz

  Immigration Attorney

  Answered on October 3, 2017

  He can continue to work if his H-1B allows him to. Applying for EB-5 does not affect his H-1B status; nor does it allow him to stay longer than the H-1B lasts. When his I-526 is approved, if his quota is current, he can apply for adjustment of status and work permit.

• Ying Lu

  Immigration Attorney

  Answered on September 29, 2017

  Because H-1B is a dual intent visa, you can apply for I-526 when you possess an H-1B status. You can also get dividends from the regional center project that he invested. As soon as your I-526 is approved, you can file your I-485 immediately if you were not born in mainland China. While you file your I-485, you can choose to file the application for EAD as well. EAD is the work authorization.

• BoBi Ahn

  Immigration Attorney

  Answered on September 29, 2017

  Yes, the investor may maintain and continue to work under the H-1B status after I-526 is filed and approved. When after I-526 is approved and the Investor files the adjustment of status, he can also apply for an employment authorization document (work permit). Until the work permit is issued, the investor can maintain and work under the H-1B status.

• Charles Foster

  Immigration Attorney

  Answered on September 29, 2017

  Yes, someone who has an H-1B visa can be admitted to the United States and work in his H-1B position until the I-526 petition is approved and the individual becomes eligible to file an Application for Adjustment of Status as well as for an Employment Authorization Document (EAD). This could take several years, so normally that would work; however, if the applicant is from China, there is a significant backlog under the quota and it is possible that the EB-5 investor I-526 petitioner would run out of H-1 B time. Yes, one could earn revenue from an EB-5 project because that is not considered employment. The H-1B, of course, is job specific and would allow employment only with the H-1B petitioning company.

• A Olusanjo Omoniyi

  Immigration Attorney

  Answered on September 29, 2017

  It is permissible to be on H-1B while an EB-5 petition is being processed until it is approved. Also, it is not unusual that an EB-5 investment may successfully result in some profit while at the same time return the invested capital. However, be aware that an EB-5 investment is always an investment at-risk, meaning that there is no guarantee of any return on your investment and, as a matter of fact, you can lose either part or all your investment.

• Mitch Wexler

  Immigration Attorney

  Answered on September 29, 2017

  It would depend on whether the EB-5 application is “Direct” or Regional Center" (RC) based. If direct, the applicant needs to remain employed by his H-1B employer and should commence employment with his/her EB5 enterprise when permitted to do so. That point in time will come when his/her Employment Authorization Document (EAD) is issued, which will be about 90 days after filing for adjustment of status, which is after the I-526 approval. If the EB-5 application is RC based, the answer is the same but it would be OK for the applicant to take up any kind of employment once the EAD is issued while being sure to continue to be available to provide the policy input to the RC projects as per agreement.

• Jimena G Cabrera

  Immigration Attorney

  Answered on September 29, 2017

  Yes. You may apply for the EB-5 visa while on your H-1B status. Once your I-526 petition is approved, you may apply for adjustment of status to the lawful permanent resident. Just make sure you are in lawful H-1B status until you file your adjustment of status application.

• Vaughan de Kirby

  Immigration Attorney

  Answered on September 29, 2017

  Your EB-5 application will have no immediate impact on your H-1. You can stay in your H-1 work position until your I-526 is approved and, if your visa is available, you can adjust in the United States. Once you adjust, you will apply for work authorization and advanced parole (allowing you to travel out of the United States).

• Fredrick W Voigtmann

  Immigration Attorney

  Answered on September 29, 2017

  Yes, an adjustment of status from nonimmigrant H-1B to immigrant EB-5 is possible. To be eligible for adjustment of status, the person must remain in valid H-1B status until the Form I-485 is filed and must not engage in any unauthorized employment. It is advisable to continue to work under the terms and conditions of the H-1B until the person receives his conditional lawful permanent resident status (green card). A profit distribution as an investor in an EB-5 project does not constitute unauthorized employment. So, receiving such profit should not be a problem. If the investor wishes to work for the EB-5 project (new commercial enterprise), then he or she should wait for employment authorization (applied for on Form I-765) or for the green card.

• Sarah A Schroeder

  Immigration Attorney

  Answered on September 29, 2017

  Because the H-1B is a dual-intent visa, an individual can remain on their H-1B while going through the EB-5 process. Typically, the person would remain on their H-1B up until receiving their work permit as part of the EB-5 filing. At that time, the individual could choose to continue to use their H-1B instead of the work permit or they could use their work permit for the purposes of employment authorization (we generally recommend maintaining the underlying H-1B as a precaution). Once their adjustment of status application is approved, their status would automatically change from H-1B to conditional permanent residency and they would no longer need their H-1B.

• Anthony Korda

  Immigration Attorney

  Answered on September 29, 2017

  Provided that the H-1B remains current throughout the I-526 Processing period then, once approved, the investor may apply to adjust status in the United States and transition from the nonimmigrant H-1B visa to the immigrant EB-5 visa and conditional permanent residence. The investor may earn a return on investment in the form of profits and dividends or interest, but cannot be employed in the EB-5 Enterprise until after an adjustment of status has been completed. If the investor or his immediate family members are employed in the EB-5 enterprise, then (unless the immediate relatives are already U.S. Citizens or Permanent Residents) the jobs will not count towards the 10 jobs that the Petitioner must create.

• Michael A Harris, Esq

  Immigration Attorney

  Answered on September 27, 2017

  The H-1B Visa allows for you to pursue residence at the same time while remaining employed. So, your H-1B employer may be able to continue to keep you employed while your I-526 petition is pending. This means you will need to remain in valid H-1B nonimmigrant status while the I-526 is pending. To better understand if you can pursue this option, you should speak with an experienced immigration lawyer who specializes in H-1B and EB-5 matters. Whether you can collect income from the EB-5 business depends on which business you invest in. Yet, as long as you are receiving income from positive cash flow and is not deemed to be a return of your principal capital investment, then income from the EB-5 business may be possible.

• Barbara Suri

  Immigration Attorney

  Answered on September 27, 2017

  The EB-5 is an immigrant visa. The H visa is a temporary work visa. Because USCIS allows a person to file for as many benefits for which they qualify and can afford, your filing through the EB-5 process does not affect your H visa. If you plan to change status in the U.S., you should remain in lawful status until the I-485 is filed.

• Bernard P Wolfsdorf

  Immigration Attorney

  Answered on September 27, 2017

  The process starts with finding a good project to invest in. The waiting line takes about 18 months to get an approval. Then, one can file to adjust status, and this takes an additional 6-12 months. One should not look at EB-5 as revenue producing, most good projects only pay a small return. It is often best to focus on capital preservation. Is the investor likely to get their money back? That is the key concern. Investors need to be sure their investment is adequately collateralized.