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How can an H-1b visa holder open a company then apply for an EB-5 visa?

I am working in the U.S. with an H-1b visa. I would like to open a business here with an investment of $300,000 and employ 6 employees. Once the business is in operation, I will invest another $200,000 and hire more employees. Given my current status in the U.S., is my plan feasible? Can I use this business for my EB-5 application? Could my initial investment be counted towards the required EB-5 investment?

Answers

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    Marko Issever

    EB-5 Broker Dealer
    Answered on

    There is no prohibition to make a passive investment in a U.S. company with any kind of visa including, the H-1B. You cannot, however, actively manage or work in that company. Your visa allows you to work only in the company that has sponsored your H-1B visa. Moreover, it is unclear as to why you want to split the investment into two stages. If your objective in filing your application before the Nov. 21, 2019 deadline is to either avoid the increased required investment amounts or not risk all the capital in one shot, that strategy might not work. Your whole application could be disqualified. You might be better off to invest in a ready-to-invest regional center project. This way, you would have a much better chance to achieve your long-term immigration goals. I strongly recommend that you work with a qualified investment professional and an immigration attorney who will advise you on project selection and immigration matters, respectively.

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    Dale Schwartz

    Immigration Attorney
    Answered on

    An H-1B visa holder can apply for EB-5 investor status. But what you tell me causes some concern. Right now the immigration service says that you must put in all $500,000 before you file the EB-5 case with them. That is being challenged in federal court, but the outcome is not clear, since the case (which we won!) is being appealed to a higher court. In the past, I have filed many EB-5 cases where less than the whole $500,000 was put in the project before the filing, and the rest was put in later (sometimes two years later) and all those cases were approved. But they have gotten stricter lately. As of Nov. 21, the minimum investment for EB-5 cases goes up from $500,000 to $900,000, and if you are not investing in a rural area or a high-unemployment area, the price goes up from $1 million to $1.8 million.

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    Robert West

    Immigration Attorney
    Answered on

    Not feasible under the current or new November rules. You are better off using a regional center and going over the details with a qualified EB-5 lawyer.

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    Charles Foster

    Immigration Attorney
    Answered on

    Yes, you can. But file before Nov. 21, 2019, with an EB-5-compliant business plan.

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    Daniel A Zeft

    Immigration Attorney
    Answered on

    As a foreign national in H-1B status, you can invest in the EB-5 business but you cannot manage this business. Your H-1B status gives you employment authorization to work for the employer that filed the H-1B petition on your behalf. However, your petition status does not give you work authorization to manage the EB-5 business.

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    Lynne Feldman

    Immigration Attorney
    Answered on

    Until Nov. 21, the investment amount is $500,000 but only if the business is located in a TEA. The full amount must be invested before you file and a plan for the jobs in place (you don't need to hire at this stage). After Nov. 21 the amount increases to $900,000, or $1.8 million if not in a TEA.

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    Bernard P Wolfsdorf

    Immigration Attorney
    Answered on

    First, the minimum investment is going up to $900,000 and $1.8 million for non-TEA. If you are on an H-1B, you can arguably own a business but not work in it. You may want to consider a regional center investment, since $500,000 invested carefully will likely achieve your green card result easier. And if you invest carefully you can likely recover your principal.

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    Belma Chinchoy

    Immigration Attorney
    Answered on

    You cannot manage the day-to-day operations of your company while in H status. You are only authorized to work your H employer. It is important not to get overly creative with this, as it could have serious consequences for your future immigration status. Secondly, partial/phased-in investment may not work given the increased investment amount going into effect on Nov 21. USCIS has not clarified this issue yet but complete investments may be required.

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    BoBi Ahn

    Immigration Attorney
    Answered on

    Under H-1B status, you can indeed invest in a business in the U.S. but you would not be authorized to work at or operate that business (since your H-1B only authorizes you for employment with the petitioner). Upon investment of the minimum requisite capital ($500,000 for businesses located in targeted employment area or $1 million if located outside the TEA), and feasible plan for creation of at least 10 full-time jobs, you can file for the EB-5 petition. You can add the $300,000 initial investment in qualifying for the minimum requisite capital.

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