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Yes, the EB-5 program is a viable substitute for those looking to work in the United States on an H-1B visa. The EB-5 program is also a great option for those already residing and working in the United States on an H-1B visa as it allows them to obtain permanent resident status and remain in the United States indefinitely regardless of their employment status.

What is the H-1B visa?

The H-1B visa is a temporary work visa that allows foreign workers to temporarily work in the United States in specialty occupations, typically requiring a higher education degree or equivalent expertise. The H-1B visa is subject to annual quotas and requires employer sponsorship, which can limit an individual’s ability to remain in the United States long-term. There is an annual limit of 65,000 new H-1B visas for every fiscal year. In addition to this annual limit, 20,000 petitions filed on behalf of the beneficiaries with a master’s degree or higher from a U.S. institution are exempt from the cap.

On December 13, 2023, the United States Citizenship and Immigration Services (USCIS) announced that the annual cap for the fiscal year 2024 has been reached for the H-1B visa classification. This means that USCIS has received a sufficient number of petitions to reach the 65,000 regular H-1B cap and the 20,000 U.S. advanced degree exemption. Therefore, individuals looking to work in the United States on a new H-1B visa must look for alternatives.

What is the EB-5 program?

The EB-5 program is a government immigration program created by the U.S. Congress in 1990. It offers a pathway to permanent residency that does not require employer sponsorship or a job offer. The EB-5 program grants permanent resident status to foreign investors who make an investment of $800,000 in a government pre-approved real estate project in the United States.  With this investment, foreign investors can obtain Green Cards for themselves and their immediate family members, including their spouse and children under the age of 21.

Why is EB-5 an attractive option?

The EB-5 program is a great option for foreign workers seeking to work and reside in the United States as it grants them greater flexibility and control over their immigration status. In addition to this flexibility, individuals are permitted the ability to pursue their entrepreneurial ventures or invest in a business that aligns with their personal and professional goals, without the fear that their employment status will have an adverse effect on their immigration status in the United States. With a Green Card in hand through the EB-5 program, the foreign worker and his or her family members can freely live, work, and travel in the United States.

Individuals already residing in the U.S. on an H-1B visa that participate in the EB-5 program can apply for concurrent filing and obtain the benefits of a permanent resident prior to obtaining their Green Cards. Concurrent filing for EB-5 applicants was introduced as part of new EB-5 regulations, called the EB-5 Reform and Integrity Act (RIA). Concurrent filing allows families to live and work in the U.S. while they await the adjudication of their EB-5 applications. It is the process of filing the investor’s I-526E petition and their I-485 application for adjustment of status at the same time. The I-526E petition is the first step in the EB-5 process, where the investor must demonstrate that they have invested the required capital in a qualified U.S. business and that the investment has created or will create at least ten full-time jobs for U.S. persons.

Concurrent filing of the I-526E and I-485 applications can help expedite the EB-5 process and minimize the amount of time that the investor needs to wait to obtain the benefits of a Green Card. Additionally, concurrent filing can provide the investor with greater flexibility and certainty, as they can begin living and working in the United States while their EB-5 application is being processed. With concurrent filing, investors can receive both employment authorization and a travel permit.

In addition to being a great option for H-1B workers residing in the United States, the EB-5 program is a great option for those individuals affected by the H-1B cap. By virtue of participating in the EB-5 program, individuals are no longer at the mercy of their employers for their immigration status and they are not subject to the annual H-1B cap.