By Abhinav Lohia

United States Citizenship and Immigration Services or USCIS recently proposed a fee hike for many visa categories including EB5 Investor Visa. The EB5 Visa or Employment-Based Fifth Category Visa was introduced by the U.S. Congress in 1990 as a means to attract Foreign Direct Investment or FDI from High Net Worth Individuals from all over the World in return of U.S. permanent residence and eventually U.S. citizenship.

The current minimum investment amount under the EB5 Visa Program is $800,000 in specially designated areas called Targeted Employment Areas. The program grants U.S. Permanent Residence to EB5 investors and their qualifying dependents. EB5 Visa involves two applications, an application for a conditional green card and an application for the removal of conditions.

In the 1990s when the program was introduced, the application fee was $1,500. In 2020 the fee was increased to $3,675 & $3,750. In 2022, USCIS declared another fee hike from $3,675 & $3,750 to $11,160 & $9,535 respectively.

Also Read: What is EB-5 Visa and how can it help Indians invest in US

The fee hike while concerning is not a deal breaker for the majority of the investors. Despite the increase in fees, the EB-5 visa program remains attractive, as it is one of the fastest ways to gain U.S. Permanent Residence.

One of the most attractive aspects of the EB5 Visa Program is that it does not require employment sponsorship which has been a critical issue for the Indian diaspora since 2007 when the H1B Visa was first over-subscribed resulting in a visa lottery.

Indian-born applicants are the highest filers of Student Visa for the United States and H1B Visa Petitions. Oversubscription of H1B Visa means that a lot of graduates who receive employment offers from H1B sponsoring employers have to leave the United States because there are not enough visas available. EB5 Visa bypasses the need for H1B Visa sponsorship for foreign nationals to work in the United States as it is a direct pathway to U.S. Permanent Residence or Green Card. Successful EB5 Visa Investors directly become part of the workforce. This is also advantageous for foreign nationals who want to pursue professions that do not qualify under any visa category.

Compared to other employment-based visa categories, the EB-5 process is relatively quick and straightforward, with an average processing time of around 2 to 3 years compared to 12-15 years of wait for other employment-based visa categories like EB2 or EB3 which is commonly used by Indian born H1B Visa holders to obtain U.S. Permanent Residence.

This makes it attractive not only for Indian EB5 investors residing in India but also within the United States. The long wait time under EB2 and EB3 categories means that H1B Visa holders are stuck with H1B Visa sponsoring entities. This could result in lower salaries compared to U.S. counterparts and career stagnation.

EB5 Visa Program is highly regulated. It comes under the purview of USCIS and Securities and Exchange Commission of the United States. Almost all applications are filed through USCIS licensed Regional Centers. In the past, both USCIS and SEC have reprimanded EB5 entities that have failed to comply with immigration and securities laws of the United States. The EB5 Reform and Integrity Act of 2022 (RIA) introduced provisions to encourage transparency and enhance the safety of EB5 Investors.

The RIA also introduced a provision that allows EB5 investors who are already present in the United States on a legal status such as a Student Visa or Work Visa to apply for adjustment of status along with their application for a conditional green card. This enables the applicants to receive employment authorisation while they wait for their Green Card. The ability to earn a living while waiting for a green card is considered by many as life-changing. EB5 Visa is about getting a foothold in the United States and gaining exposure to a developed economy that offers one of the highest salaries in the World to talented people.

The proposed rule would increase the application fee for H1B visas for highly skilled employees by 70% to $780. Employers recruiting highly skilled foreign nationals will pay 201% more employees on L1 visas (from $460 to $1,385) and 129% more for people on O1 visas (from $460 to $1,055). Fees for petitions to sponsor H2A visas for agricultural workers will increase by 137%, from $460 to $1,090. Fees for H2B visas for seasonal and non-agricultural employees will increase by 135%, from $460 to $1,080. Green card applications from existing immigrants in the US would increase by 35% to $1,540.

Also Read: Bad news for foreign property buyers! Portugal to end issuance of new golden visas

To sum it up, the proposed hike in the EB5 visa fees and other visa categories is necessary to implement the safeguards put in place for investors under the EB5 Reform and Integrity Act. Furthermore, USCIS is trying to reduce the adjudication times of EB5 Visa Petitions; this requires hiring more adjudicators. The fee hike, coupled with the implementation of investor safeguards will make the program more attractive. The advantages of the EB5 Visa Program are considered by many well worth the fees imposed by USCIS.

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

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