The H-1B Program: Benefits and Challenges
The H-1B visa program has enabled thousands of qualified foreign nationals to advance their careers and lives in the United States while providing a broader talent pool for specialty positions. The H-1B visa has become especially popular in the tech industry. Engineers, software developers and computer science specialists have been the bread-and-butter occupations for skilled H-1B employees. Check H-1B salary data in your area with our H-1B Wage Map.
The Current Crisis
The tech industry has been severely impacted by multiple factors in the last 3-5 years:
• Covid-19 Aftereffects: Lasting economic impacts from the pandemic
• Market changes and economic pressures: Shifting industry dynamics
• Company Layoffs: Widespread workforce reductions across tech
• Increased Automation and AI Implementation: Technology replacing roles
• Current Administration Pressures: Policy changes affecting visa holders
These factors have combined to create a market that has been extremely unfavorable to the H-1B employee. Research H-1B sponsoring employers with our H-1B Job Datahub. When H-1B workers lose their job, they face an immediate crisis. Upon termination or role elimination the H-1B employee has 60 days to:
1. Find another role at the same company
2. Secure a job at another company willing to sponsor their visa
3. Leave the United States
Companies seeking specialized skills typically conduct months-long searches to find ideal candidates. Sixty days is rarely sufficient to perform due diligence and complete the sponsorship process. What is the H-1B employee supposed to do and how can we mitigate this risk? For 5 compelling reasons to switch from H-1B to EB-5, read our detailed guide.
The EB-5 Visa Solution
What makes the EB-5 Visa Appealing?
The EB-5 Immigrant Investor program allows foreign nationals to apply for U.S. residency through qualified investment. Upon meeting USCIS requirements and successfully completing the EB-5 process, applicants will receive a permanent U.S. green card which enables them to live, work and study in the United States.
Key Advantages over H-1B:
• No Employer Sponsorship Required: EB-5 investors do not need employer sponsorship to maintain status and reside in the United States
• Family Inclusion: Immediate family members (spouse and unmarried children under 21) qualify as visa beneficiaries. This enables entire families to immigrate together and allows children to avoid the aging out crisis
• Work Authorization: All family members can obtain work and travel authorization
• Permanent Residency: Direct path to a green card without temporary visa restrictions
• Pathway to Citizenship: Green card holders can eventually apply for U.S. citizenship
Adjustment of Status, Concurrent Filing and RIA 2022
The Game Changing Adjustment of Status Process
A major advantage of the EB-5 program is the ability for the investor to apply for Adjustment of Status while residing in the United States. This process allows individuals already in the U.S. to apply for permanent resident status without leaving the country.
Understanding Concurrent Filing
When a foreign national files their I-526 or I-526E petition (the initial EB-5 application) they can simultaneously file the I-485 petition for adjustment of status. This concurrent filing process offers immediate benefits. The investor can:
• Remain in the United States: While the Adjustment of Status application is pending, the investor can legally stay in the United States
• Employment Authorization Document (EAD): Allows you to work for any employer. No sponsorship needed!
• Advanced Parole (AP): Permits travel in and out of the United States while your green card application is pending
Bypassing Visa Backlogs with Set-Asides
What is Visa Retrogression?
The EB-5 program offers expedited processing compared to many immigration alternatives. However, applicants from high demand countries like China and India historically face delays due to visa retrogression. Retrogression occurs when more applications are filed than visas are available. This causes processing times to extend several years.
The Set-Aside Solution
To bypass the EB-5 visa queue investors from high demand countries can qualify for reserved visas. These visas are set aside from the total annual pool and reserved for investors in Targeted Employment Area Projects. Check your country's current visa availability with our Visa Backlog Checker.
Set Aside Categories and Allocations
Of the total annual EB-5 visa pool:
• 20% Rural TEA projects: The largest allocation and best option for high demand countries
• 10% High Unemployment TEA Projects: For areas with unemployment rates 150% of the national average
• 2% Infrastructure Projects: For qualifying infrastructure projects
Set Aside visas are allotted on a first-come first-served basis. Foreign nationals from backlogged countries become eligible for a reserved visa as soon as their I-526/I-526E petition is approved if they invest in rural projects.
How to Qualify for the EB-5 Visa
The Three Core Requirements
To qualify for a permanent US green card through the EB-5 program applicants must satisfy three fundamental requirements:
1. Minimum Investment Amount
The required investment depends on the project:
• Standard Projects: $1,050,000
• Targeted Employment Area Projects: $800,000
Fees include regional center admin fees, USCIS filing costs and any applicable attorney fees throughout the EB-5 process.
2. New Commercial Enterprise
USCIS defines an NCE as any for-profit activity formed for the ongoing conduct of lawful business. This definition excludes non-commercial activities such as owning and operating a personal residence.
NCE Structures can include:
• Sole Proprietorship
• Limited or General Partnership
• Holding Company
• Joint Venture
• Corporation
• Business Trust
• Limited Liability Company
3. Job Creation
Job Creation is the most crucial aspect of the success of the EB-5 investment. Applications must create at least 10 full time jobs for U.S. workers. If a foreign national fails to create enough jobs by the time they file their I-829 petition (the final step of the EB-5 process), they will not receive a permanent green card.
Note: EB-5 job creation requirements differ significantly between investment types. Regional Center investments are the most FLEXIBLE option for employment generation because they allow indirect and induced job creation to count toward the requirement.
Getting Started with EB-5 Immigration
Is EB-5 Right for you?
The EB-5 Program is considered one of the fastest routes to a U.S. green card and is the valuable lifeline for H-1B workers seeking to maintain status. The EB-5 visa offers a direct route to permanent U.S. residency and citizenship.
The EB-5 immigration process requires significant investment of both time and money and presents risks. Before proceeding the investor should carefully consider:
• Financial commitment: Minimum $800,000-$1,050,000 investment plus additional fees
• Investment Risk: EB-5 investments must remain at risk but this DOES NOT mean the investment should be risky. Finding a Regional Center that has a long track record of success is important
• Job Creation Requirement: Must be fulfilled for permanent green card approval
• Source of Funds Documentation: Must prove lawful source of investment capital
Key Takeaways
1. The Crisis: Over 270,000 tech jobs have been cut in the last year with 30-40% affecting H-1B and other temporary visa workers who face not just unemployment but potential deportation
2. The 60 Day Window: H-1B workers who lose their jobs have only 60 days to find new sponsorship or leave the United States
3. Concurrent Filing Advantage: File I-526E and I-485 simultaneously to receive EAD and Advance Parole in as little as 60 days while remaining in the United States. Basically, the investor gets the benefits of the green card while waiting
4. Bypass Backlogs: Investors from China and India can avoid visa retrogression by investing in Rural TEA projects
5. Path to Citizenship: EB-5 provides direct route to permanent green card and eventual U.S. Citizenship unlike temporary H-1B status
6. Family Benefits: EB-5 visas extend to immediate family including spouses and children under age 21
Conclusion
The EB-5 immigrant investor program represents a lifeline for workers facing job loss in an uncertain economic climate. Many H-1B employees even look for options abroad like golden visas in other countries. However, this route does not help H-1B workers who want to stay in the United States. EB-5 can offer independence, security and a direct route to permanent residency without the constraints of employer sponsorship. The programs benefits are significant: freedom from employer dependency, ability to remain in the United States while your application is pending and inclusion of family members can be lifechanging for H-1B employees.
For further information and to schedule a free consultation visit StudentEB5.com.
