“I’m in the United States on an H-1B visa, and I’m looking at EB-5. I’d like a checklist to walkthrough my steps.”
H-1B is a temporary non-immigrant visa whereas the EB-5 visa leads to permanent residency and a greencard. This has created a surge in interest from immigrant employees already in the United States, have made their home here and are interested in a permanent immigration solution. H-1B employees already here in the United States also benefit from expedited processes known as “concurrent filing” that can allow them to remain living and working in the United States with no interruption. Concurrent filing is also not subject to change or revocation from future retrogression so that is also a major driver of demand for the EB-5 visa from high volume filing countries such as China or India. This blog post will cover the steps you need to take to move from H-1B visas to an EB-5 visa or permanent greencard through the EB-5 immigrant investment program. At the end of the article, we also list some Frequently Asked Questions on items involving switching employers, maintaining employment while filing for EB-5 visa and what flexibility there is between the two categories. For now, here are the basic steps on an H-1B employee to move to the EB-5 visa.
Step 1: Assess Your Financial Situation
Step 2: Speak with an EB-5 Attorney
Step 3: Pick an EB-5 Project
Step 4: Move forward with your EB-5 Attorney to prepare your Source of Funds
Step 5: Initiate the Job Creating Investment
Step 6: Your attorney files I-526E and this locks in your priority date.
Step 7: File 829 to get your ten year green card.
Step 8: Receive your investment back.
Step 1: Assess Your Financial Situation
The minimum investment for an EB-5 investment is $800,000 and it must be located in a qualifying area. The $800,000 investment has wide variety and can be structured in various ways including but not limited to Debt, Preferred Equity or Common Equity. As with any investment you need to evaluate the risk, reward and opportunity costs involved especially if you are raising money with debt financing and using your retirement savings. The Immigration benefit is very important to your family, but so is the value of your investment.
Top level providers will give you find comprehensive options to consider;
- Behring’s Partial Payment Plans enable you to kickstart your filing to lock in your priority date and begin your immigration benefit timeline. A typical plan begins with $200k and lasts 10 months.
- Unity Loans can help you plan out your full investment. Start the process with a pre-approval request, which will not impact your credit score.
- 401K/IRA Rollovers allow you to maintain the tax protection of your savings while your investment goes toward your $800,000 target.
Step 2: Speak to an EB-5 Attorney
H-1B is a dual intent visa, allowing you to apply for an Immigrant Visa. Typically this is done with an I-140, but in the context of EB-5, the Immigrant Visa is called I-526E. An immigration attorney can confirm your eligibility with a dual intent visa. They will also help you understand the EB-5 program and what your responsibilities are, which is primarily to provide the U.S. Government with a report of your lawful sources of funds.
Your attorney will assist you but putting together your source of funds report and they will prepare and file your EB-5 form I-526E. Many investors choose to also file I-485 Adjustment of Status. This is called a concurrent filing and if you file concurrently while visas are available on the State Department Visa Bulletin, you can also get a five year Employment Authorization Document and Advance Parole travel documents for your qualifying family members.
Your EB-5 attorney works for you independently from your investment and will be highly skilled and knowledgeable about the whole EB-5 process. They will maintain communication with USCIS, addressing any Requests for Evidence (RFE’s) or inquiries during the application process to enhance your experience.
Step 3: Pick an EB-5 Project
Choosing the right project for your EB-5 investment is crucial. The project should not only meet the EB-5 program criteria, but it should also be financially sound and managed by a reliable team. This is where your due diligence comes in. You need to thoroughly research the project’s business plan, financial projections, and job creation methodology. The project should be capable of creating or preserving at least 10 full-time jobs for qualifying U.S. workers per investor.
There are two types of EB-5 projects you can invest in: direct investments and regional center projects. Direct investments involve the investor directly managing the business and the creation of 10 direct jobs. On the other hand, regional center projects allow for indirect job creation and do not require the investor’s day-to-day management. The choice between a direct investment and a regional center project will depend on your personal preferences, risk tolerance, and involvement level.
Lastly, consider the project’s location. The minimum investment amount for an EB-5 visa can vary depending on whether the project is in a Targeted Employment Area (TEA). A TEA is either a rural area or an area with high unemployment. Investments in projects located in a TEA require a lower investment amount compared to those not in a TEA. Engaging with an experienced EB-5 attorney can provide valuable guidance in picking a suitable EB-5 project.
Step 4: Move forward with your EB-5 Attorney to prepare your Source of Funds
The next step in the EB-5 process involves preparing your source of funds report with the help of your attorney. The source of funds report is a critical component of your EB-5 application as it provides evidence that your investment funds were obtained legally. This might involve tracing the funds back to their origin, demonstrating a history of income or asset accumulation, or documenting the lawful transfer of funds from another individual. Your attorney can provide valuable guidance on what documentation might be necessary and how to compile it effectively. Remember, each investor’s source of funds will be different, so it’s essential to consult with your attorney to ensure you provide comprehensive and accurate information. USCIS closely scrutinizes the source of funds to ensure compliance with U.S. laws and regulations.
Step 5: Initiate the Job Creating Investment
Once you’ve prepared your source of funds report and chosen your EB-5 project, it’s time to initiate the job-creating investment. This typically involves transferring the required investment amount into the chosen project through an escrow account. Ensure that you have all the necessary documentation evidencing your investment, as you will need to provide this when filing your I-526E petition and your I-829 petition which measures your sustainment period when the funds were made available to the project. The documentation should clearly show that the investment funds have been committed to the project and are at risk, whether you make a full payment or a partial payment. Remember, the investment must lead to the creation of at least 10 full-time jobs for qualifying U.S. workers, so the project you choose to invest in should have a robust plan for job creation.
Step 6: Your attorney files I-526E and this locks in your priority date
Once your investment is made, your attorney will then file Form I-526E, Petition by Alien Entrepreneur . This form provides evidence of your investment and job creation plans. Filing Form I-526E locks in your priority date, which is the date that USCIS receives your completed petition. By filing the I-485 concurrently within the United States, you’ll also receive a five year EAD and advance parole documents, typically in 100 days. The priority date is important because it determines your place in the visa queue. It’s essential to work closely with your attorney during this step to ensure that your I-526E petition is correctly filled out and that all necessary documentation is included.
Step 7: File Form I-829 to get your ten year green card
After your I-526E petition is approved and you’ve entered the United States with your greencard you will look forward to filing the “removal of conditions” or what is known as the I-829 petition. After having spent 21 months as a conditional permanent resident, your “filing window opens where you must file the I-829 prior to the 2-year anniversary of starting conditional residency. The Form I-829, Petition by Entrepreneur to Remove Conditions on Permanent Resident Status is your last step in the EB-5 immigration process. This form provides evidence that you have met all requirements of the EB-5 program, including maintaining the investment in the new commercial enterprise and creating or preserving the required number of jobs. Once your I-829 petition is approved, the conditions on your green card will be removed, and your next green card will be vaild for ten years.
Step 8: Receive your investment back
After you’ve fulfilled either the minimum investment term as per your investment project, or satisfied the USCIS sustainment period requirement, you can look forward to receiving your investment back. The project likely needs to be commercially successful for smooth repayment and that is where multiple factors come into play whether it be market conditions, risk structure or developer solvency etc. The timeline for receiving your investment back can vary depending on the terms of your investment agreement and the success of the EB-5 project.
FAQ:
Q1. If I apply for EB-5 while I’m on H-1B, can I keep my job?
You can continue working for your H-1B employer while your EB-5 petition is pending and throughout the entire EB-5 process, including the conditional permanent residency stage.
Q2. If I apply for EB-5 while I’m on H-1B, do I have to keep my job?
When you file for Adjustment of Status at the same time as your EB-5 Immigrant, you can also apply for an Employment Authorization Document and Travel Documents in 3 to 6 months.
If you were to leave the H category employment, you would be allowed to remain in the United States working with your Employment Authorization Card (EAD).
Q3. What are the risks and benefits of using the EAD card instead of my H-1B employment?
Risks of Using the EAD Card Instead of H-1B Employment:
- Loss of H-1B Status: If you choose to use your EAD for employment instead of your H-1B status, your H-1B status may be considered abandoned or revoked. This means that if your EB-5 application is unsuccessful, you may not have a fallback option to continue your H-1B employment.
- EAD Limitations: The EAD obtained through the EB-5 program is typically tied to your conditional permanent residency status. If your conditional permanent residency is terminated or expires without successfully removing conditions (Form I-829 approval), you may lose your EAD and the associated work authorization.
Benefits of Using the EAD Card Instead of H-1B Employment:
- Flexibility: The EAD is approved for five years and provides you with more flexibility to work for any employer or start your own business in the United States, rather than being tied to a specific H-1B employer. This flexibility can be advantageous if you want to explore different career opportunities or entrepreneurial ventures.
- No Dependence on H-1B Sponsor: By using the EAD, you are not dependent on your H-1B sponsoring employer, and you are not subject to the H-1B cap or the requirement for your employer to file H-1B petitions for extensions.
- Less Employer Oversight: With an EAD, you may have more control over your employment and may not be subject to the same level of employer oversight and sponsorship obligations that come with H-1B employment.
- Ability to Change Jobs Easily: You can change jobs without the need for new H-1B sponsorship or transfers, which can simplify your career mobility in the U.S.
Q4. If I apply for eb5, What are the risks and benefits of using the advance parole documents for travel instead of my H-1B visa?
If you are an H-1B visa holder and you apply for an EB-5 immigrant investor visa, you may be eligible to obtain an advance parole document (also known as an Advance Parole Travel Document) through the EB-5 process. This document allows you to travel internationally and re-enter the United States while your EB-5 application is pending or if you have conditional permanent residency. Here are the potential risks and benefits of using the advance parole document for travel instead of your H-1B visa:
Benefits of Using Advance Parole for Travel:
- International Travel: Advance parole allows you to travel internationally for personal or business reasons while your EB-5 application is pending or during the conditional permanent residency stage. This can be advantageous if you need to visit family abroad or conduct business outside the U.S.
- Avoid H-1B Revalidation: If you use advance parole for travel, you do not need to go through the H-1B visa revalidation process when returning to the United States. This can save time and potential complications associated with H-1B visa stamping.
- Maintain Your H-1B Status: By using advance parole, you can maintain your H-1B status and continue working for your H-1B employer without the risk of H-1B status issues that can sometimes occur during visa stamping or revalidation.
Risks and Considerations of Using Advance Parole for Travel:
- EB-5 Processing Delays: If your EB-5 application experiences delays or issues, you may face uncertainties regarding your ability to return to the U.S. Using advance parole does not guarantee approval of your EB-5 petition or removal of conditions on your permanent residency.
- Impact on H-1B Status: While using advance parole does not automatically jeopardize your H-1B status, it may raise questions if you leave the U.S. while your EB-5 application is pending, especially if you are applying for an immigrant visa.
- Timing and Planning: Careful planning is essential when using advance parole for travel. You should consult with an immigration attorney to ensure that your travel plans align with your immigration goals and the status of your EB-5 application.
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