EB-5 program emerging as a better option compared to H-1B visa

The EB5 visa has emerged as a possible alternative to the H-1B visa as a result of revisions in the US immigration legislation.

cap for H-1B visas, Lottery system, selection process, U.S. Citizenship, Immigration Services
The EB-5 Visa allows for a legal pathway to live, work, and study in the US.

By Abhinav Lohia

Despite economic shifts, the pandemic, and other global forces, the H1B visa program has continued to be popular in India, especially for professionals in STEM category. In March 2023, the U.S. Citizenship and Immigration Services (USCIS) issued an announcement indicating that the cap for H-1B visas for fiscal year 2024, starting from October, had been reached.

Subsequently, the USCIS randomly chose from the properly submitted registrations and notified those who were selected to file a petition for the named beneficiary. The current situation with the program is not a new one. For close to 2 decades, graduates and professionals from all over the World have wagered on a computerized lottery to earn their livelihood in the US.

H1B Lottery system’s selection process – Drawbacks

The H-1B Lottery system’s selection process is currently in effect. While the lottery system is intended to ensure impartiality and fairness, the growing number of applicants has caused increased uncertainty for H-1B Visa aspirants. The process randomly picks applicants without considering the merits of the applicants.

Also Read: Impact of EB5 visa fee increase on Indian investors

Once picked, USCIS determines the eligibility criteria. With over 350,000 applications filed for a quota of 85,000 visas, approximately 75% of the applicants will not get a chance to work in the United States on an H1B Visa. The 25% of the applicants who do get the Visa will be dependent on their employer to live and work in the United States till they receive an employment based green card. In case of Indian born applicants, the wait time for Employment Based 2 and Employment Based 3 category is estimated to be over 30 years.

EB5 Visa Applications – An alternative

Given the prevailing ambiguity and long wait times under other employment based green card categories, there has been a noticeable increase in EB5 Visa applications. This trend is indicative of many individuals exploring alternative avenues to secure their future in the United States.

Compared to other visa options, EB5 Visa has several advantages, including the ability to obtain permanent residency without relying on employer sponsorship and the potential for a faster path to US Citizenship. This program requires foreign nationals to make a minimum qualified investment of $800,000 or INR 6.5 Crore into an EB5 Project that creates at least 10 new full-time jobs for US workers. The funds are usually given to a real estate developer as a debt for 5 to 7 years and repaid to the EB5 Investor post that.

In exchange for the 5 to 7 year investment, the EB5 investor, their spouse, and unmarried children under the age of 21 are granted a US green card, which permits them to work, study and reside in the USA. After having a green card for 5 years, the investor and their family become eligible to apply for US citizenship.

Furthermore, following the reauthorization of the EB5 Visa program in March of 2022, the required investment amount was set to $800,000 in Targeted Employment Areas or TEA areas and $1.05 million in non-TEA areas. The program also introduced visa-set-aside categories for EB5 investors, with 20% allocated to rural areas, 10% to high unemployment areas, and 2% to infrastructure projects. These set asides have allowed new EB5 applicants to virtually jump ahead in line of Pre-March 2022 EB5 Visa Applicants. The new laws also allow EB5 investors already residing in the United States to file for Adjustment of Status and Employment Authorization. This allows them to live and work in the United States till they receive a Green Card. This is especially attractive for existing H1B Visa Professionals who are currently dependent on their employers to live and work in the United States.

EB5 Visa is a direct pathway to U.S. Permanent Residence. Over the last 10 years, it has increased in popularity in India because of the increasing uncertainty of the H1B Visa Lottery and constraints of employment sponsorship which in some cases has been described as indentured servitude. EB-5 Visa is a quicker path to permanent residence and citizenship compared to other visa categories. It offers a legal pathway to live, work, and study in the U.S.

(Authors is Director Global Business Development, Golden Gate Global)

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First published on: 21-05-2023 at 07:07 IST