There are many people in the US who feel trapped in the H1b category. Business Immigration Lawyers understand that the system is particularly unfair for many foreign nationals who benefit our country’s IT industry. Oftentimes, H1b holders face shockingly long wait times for employment based green cards in the eb2 category. This situation creates despair and disappointment for many of our country’s elite IT talent. The good news is that there is an opportunity for people who feel stuck in the H1b visa category to relatively quickly obtain a green card. This can be accomplished through investment in the Eb5 program.
What is the Eb5 Program?
The Eb5 program allows foreign nationals to obtain a green card through an investment of $1.8 Million or $900,000(in a targeted employment area). There are different types of Eb5 investments. These investments include regional center projects, direct pool projects and direct investment projects. In order to be successful, a direct investment or direct pool Eb5 project must create 10 full time jobs. Regional center Eb5 investments also must create 10 full time jobs, but can count indirect employment in the job tally.
Why Should I consider Switching from H1b to Eb5?
There are many reasons why an H1b holder should consider the Eb5 program. One main reason for considering a switch from H1b to Eb5 is speed. Indian foreign nationals stand to benefit the most by the relative speed of an Eb5 petition. Indian nationals in H1b status who have an approved I-140 in the Eb2 category could face a 20-25 year wait. Also, the Eb5 program is beneficial for people who have spouses who are currently unable to obtain an Employment Authorization Document(EAD). With an Eb5 petition, once the I-529 is approved, your spouse can obtain an EAD within 90 days.
Who qualifies for the EB5 Program?
First, if you are investing in a regional center project with a Private Placement Memorandum(PPM) then you are required by securities law to be an accredited investor.
You can qualify as an accredited investor through income or assets. To qualify by income, you must earn $200,000 as an individual for two years in a row. Or, you and your spouse together can qualify as accredited investors by earning more than a combined $300,000 for two years in a row. In order to qualify by assets, you need to have assets anywhere in the world that total $1 million.
Can I still qualify for Eb5 if I don’t qualify as an accredited investor?
Yes, you can still qualify for Eb5 if you do not qualify as an accredited investor. You can do Eb5 as part of a direct pool project or an entrepreneurial project. You simply can not do Eb5 through any project that has a PPM.
What happens to my I-140 if I file an Eb5 Petition?
This is a common concern for H1b holders. Oftentimes workers in the Eb2 category have to wait many years before a visa becomes available. This group does not want to do anything that would jeopardize their employment based green card or negatively effect their priority date. The good news is that those who are awaiting a green card can file multiple petitions simultaneously. For example, you can maintain your priority date for your Eb2 after you file your Eb5 petition.
What happens if my employment green card becomes available before I obtain my visa through Eb5? Can I get my money back?
This answer depends on the project, but generally speaking you have no right to have your money returned if you decide that you no longer want to participate in the Eb5 program. Anyone who is interested in going from H1b to Eb5 should understand this point.
I have the money for Eb5. Is there anything else that I need to be aware of?
Yes. You need to understand that simply having the money is not enough. You also need to be able to show that the funds came from a legal source. This sounds easy, but oftentimes it is difficult to trace money back to its original source. This is especially difficult if there are multiple gifts that all have to be traced back to the source in an effort to ensure the US government that the money was lawfully acquired.
Conclusion
There are a number of reasons why the Eb5 program could be a good option for some H1b workers. If you are dissatisfied with your current situation, the Eb5 program is worth a look. As always, it is important to consult an immigration lawyer to discuss the requirements and help you determine if the Eb5 program would be right for you.
