Implementing the EB-5 Reform and Integrity Act of 2022 has provided H-1B visa holders, especially Indian nationals, a more accessible pathway to apply for EB-5 visas and secure permanent residency in the U.S.
According to immigration attorneys, through the concurrent filing route provided by RIA, H-1B holders can file their Adjustment of Status alongside their EB-5 petition, allowing them to stay in the country while their EB-5 process progresses.
Indian nationals facing significant visa backlogs in other categories are increasingly turning to the EB-5 program for a smoother transition to permanent residency. Despite the complexities and costs involved, these H-1B holders find the EB-5 visa appealing due to its control over their immigration status and the ability to invest in preferred projects.
Concurrent filing helps streamline the EB-5 process for H-1B holders
According to immigration attorneys, H-1B holders are taking advantage of a specific opportunity with the new legislation: the concurrent filing route, which allows them to file an Adjustment of Status (I-485) with their EB-5 petition (I-526) simultaneously.
“The H-1B transition to EB-5 phenomenon we have observed pre-RIA of 2022 and post-RIA 2022 has been mostly an India-born applicant phenomenon,” says EB-5 broker-dealer Marko Issever, CEO of America EB5 Visa.
Concurrent filing allows U.S. applicants to stay in the country while their EB-5 process progresses. While waiting for their I-526 petition to be approved, the H-1B employee can concurrently file to adjust their status, travel documentation, and new work authorization.
“Concurrent filing has been a game changer,” Rana Jazayerli, an immigration attorney and the founding attorney at Jazayerli Law, LLC. “Because of concurrent filing, as long as visas are available – and with the set-asides under the RIA, the visa categories have remained current – this has made a big difference and has allowed the EB-5 program to continue to thrive. The majority of new investors come from people already in the United States who can tolerate the extended processing times, though those thankfully are starting to go down.”
This simultaneous filing process allows them to continue living in the U.S. and not leave and wait for their I-526 forms abroad.
“It’s the perfect marriage,” says immigration attorney and founder of Carolyn Lee PLLC, Carolyn Lee, particularly for workers facing layoffs. “EB-5 and concurrent filing have allowed H1-B workers suffering layoffs to remain in the U.S., continue with work authorization, and live in the U.S. without being tied to an employer sponsor.”
Jazayerli adds: “It’s a very smooth transition. While your EB-5 is pending and your adjustment is pending, if something happens with your current job, you can either find a new job without having to be sponsored for H-1B (as long as you applied for temporary employment authorization when filing your adjustment application and that temporary employment application has been approved), which is just more flexible because not every employer wants to go through the process of doing a visa sponsorship, even a temporary H1B. It’s a good backup.”
Indian nationals are seizing the EB-5 visa access route
H-1B Indian nationals are reportedly the ones most seizing this access route to the EB-5 visa, even when they face a backlog due to their nationality in the EB-5 application process.
According to Jazayerli, “What’s happening to the Indian EB-5 with respect to visa wait times is minimal compared to what’s happening to them in EB-2 and EB-3. For people born in India, the backlog is so long and that’s a testament to the number of qualified people sponsored for employment-based permanent residency from India and in the IT field.”
Like any other country, applicants from India are subject to a 7% limit on the distribution of visas for all nationalities applying for employment-based immigrant visas. Approximately 140,000 immigrant visas are available for this category this year, spread across the five preferences; EB-5 preference being the fifth option available.
“Indian nationals in the EB-2 and the EB-3 make up a disproportionately large number of the foreign national employees who have been sponsored for those two particular visas. Because of that fact and the 7% quota limit, every year, there are more Indian nationals sponsored than visas available for that category for Indian nationals. And so, every year, the backlog grows,” Jazayerli explains.
Other nationalities are not experiencing the same retrogression as Indians do in the employment-based visa categories, says Issever.
The July 2024 Visa Bulletin shows that the final action dates for Indian nationals are Jun. 15, 2012, and Sept. 22, 2012, for EB-2 and EB-3, respectively, while the filing dates are Jun. 22, 2012, and Oct. 1, 2012, which “does not paint a much brighter picture. To find when a visa will be available in these two categories, candidates cannot simply subtract today’s date from the dates posted in the charts because the priority dates do not progress with the calendar. They move much slower,” Issever says.
Even EB-1, a historically preferred option by Indian H1-B holders who could not opt for EB-5, is reportedly becoming increasingly difficult to obtain. “Many Indians who either could not afford the required EB-5 investment or thought they would qualify for EB-1 used to consider the EB-1 category with much sooner priority dates. However, those dates are now seriously retrogressed as well,” he cautions.
“Indian foreign nationals on H-1B who are choosing to invest under the EB-5 visa program have realized that, realistically, they’re never going to get a green card based on that employment [Eb-2 or EB-3] because of where they are in the line,” Jazayerli adds.
Although they benefit from extending their H-1B status beyond the normal 6-year limit, this alternative is uncertain as it depends on them working for their sponsoring company, which changes if they are laid off or seek a career change.
Therefore, the EB-5 visa gives these workers much-needed control over their immigration status in the U.S.
“Most people on an H1-B decide to go with the EB-5 because it’s about taking control over their life and their ability to remain in the United States,” Jazayerli insists. “EB-5 is really the only visa where a person has their own control over it. Almost all other immigrant visas have to be sponsored.”
EB-5 benefits outweigh costs and complexity for H1-B holders
EB-5 has become even more alluring because of the set-aside categories introduced by RIA in 2022, Issever adds.
“The main reason being the H1-B visa holding investors’ ability to select and invest in a project from the visa set aside categories. These investors are all current for now, which technically means they can file their EB-5 and I-526/I-526E (I-526) petitions simultaneously with their adjustment of status, work permit, and travel permit applications. As long as their priority date is still current when their I-526 petition is approved, they can get a green card almost simultaneously,” Issever says.
Issever adds H-1B holders, in general, are opting for rural TEA projects, as this specific EB-5 set-aside category has double the number of visas allocated compared with the other two alternatives (high-unemployment TEAs and infrastructure projects). “The rural projects are also getting faster adjudications, making it more likely that by the time their I-526 petition is approved, they will still be current in both [filing and final action dates].”
These H-1B holders choose EB-5 despite the high cost and complex application process.
“Yes, [EB-5] it’s expensive. Yes, the process takes a long time now. And yes, there is the added step of having to have conditional status for a few years and then apply to remove it. So, it’s not the easiest, most straightforward process, but it’s the only process where a person can financially make the investment, can actually take control and do it themselves, and not be dependent on another person or entity sponsoring them.”
However, Lee cautions this flow of H1-B applicants to EB-5 may change once backlogs start emerging for all three set-aside categories due to high demand from heavy applicants from China and India. “They may be shut out of concurrent filing. That’s an inevitability that might emerge in the near future.”
Also, being on an H-1B visa on a U.S. salary allows them more opportunities to gather the necessary funds to invest in an EB-5 visa. “Since H1-B holding EB-5 applicants have earned a significant amount of their invested capital in the US, their source of funds and path of funds is less complicated. These two aspects of the EB-5 investment are the most challenging for investors investing from abroad, from their home countries under Reg S.”
Issever also notes that H-1B applicants for EB-5 are opting for partial funding while they liquidate assets, thus “mitigating the risk of having to sell their assets when it is not advantageous for them, a flexibility that has added to the increase in demand we see in EB-5 in general, but most acutely from H1-B investors.”
Regarding this scenario, Lee concludes: “It’s happening, and some regional centers have gotten quite enterprising and innovative in helping investors.”
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