Options for Employees Facing An H-1B Layoff

H-1B visa holders face unique challenges when confronted with unexpected layoffs. As an H-1B employee, a sudden loss of employment can jeopardize your legal status in the United States, with only a 60-day grace period to secure new sponsorship or change visa status.

The EB-5 Immigrant Investor Program is a good solution for this uncertainty, offering H-1B holders a path to maintain residency in the U.S. while planning for the future.

Overview of H-1B Visa Constraints

H-1B visas are temporary work permits that allow skilled foreign professionals to work in the United States for a specific employer. These visas are typically valid for three years and can be extended for up to six years.

H-1B layoffs can pose a significant challenge, as visa holders are bound by a sponsoring employer and must maintain active employment to maintain legal status. After losing sponsorship from an employer, you only have 60 days to either find new H-1B-sponsored work, change to a different visa status, or leave the country.

Transitioning from H-1B to EB-5

H-1B holders facing uncertainty can consider transitioning to an EB-5 visa for greater stability and independence. The EB-5 visa offers a path to permanent residency through investment, freeing individuals from reliance on employer sponsorship.

Benefits of the EB-5 Visa for Former H-1B Employees

By investing in a qualifying project, investors can secure green cards for themselves and immediate family members. This transition provides several advantages compared to an H-1B visa:

• Permanent residency: The EB-5 program offers a clear path to obtaining a green card, as investors qualify after maintaining their investment for a set period and meeting the program requirements. While the H-1B visa can lead to permanent residency, it does not offer a “direct” route. The H-1B process requires employer sponsorship, typically through the labor certification (PERM) process, followed by a petition for an immigrant visa (Form I-140) and subsequent adjustment of status (Form I-485). This process can be lengthy and is contingent on employer participation and visa availability.
• Work Authorization Flexibility: EB-5 investors, after receiving their Employment Authorization Documents (EADs) and subsequently their green cards, are free to live, work, and study anywhere in the U.S. without the need for employer sponsorship. In contrast, H-1B holders are tied to their sponsoring employers, which can limit job mobility and career flexibility.
• Family inclusion: A key benefit of the EB-5 program is that immediate family members (spouses and unmarried children under 21) are included in the same green card application, providing a straightforward path to permanent residency for the entire family. While H-1B visa holders can sponsor spouses and children under the H-4 dependent visa category, this status does not automatically lead to permanent residency and requires additional processes.

Understanding EB-5 Investment Requirements

To qualify for a green card through the EB-5 visa, investors must meet specific requirements focused on two key areas:

• Investment Amount: Investors are required to contribute a minimum of $800,000 for projects located in Targeted Employment Areas (TEAs), which include urban areas with high unemployment and rural areas. For projects outside of TEAs, the minimum investment requirement increases to $1,050,000.
• Job creation: Each EB-5 investment must result in the creation or preservation of at least 10 full-time jobs for qualifying U.S. workers. Regional centers play a crucial role by allowing investors to count indirect and induced job creation in addition to direct jobs, making it easier to meet this requirement. This flexibility often makes investing through regional centers a preferred choice for many EB-5 applicants.

Role of EB-5 Regional Centers in Supporting H1B Transitions

EB-5 regional centers can help former H-1B visa holders transition to the EB-5 program. These USCIS-approved organizations offer invaluable support throughout the investment process by aiding with:

• Streamlined Investment Process: Regional centers simplify the investment process by offering pre-approved projects that align with EB-5 requirements. These projects are often structured to maximize job creation, meeting program criteria more effectively and reducing the burden on individual investors to find and qualify investments on their own. Regional Centers can help former H-1B holders to find EB-5 projects that align with their investment goals and risk tolerance.
• Legal compliance: Regional centers can offer comprehensive guidance, simplifying the complex regulatory landscape by ensuring that every aspect of an investor’s project meets USCIS requirements. This includes aiding with documentation, monitoring compliance, and managing ongoing reporting, reducing the burden on the investor and mitigating the risk of errors.
• Investment management: Regional Centers typically oversee the day-to-day management and oversight of EB-5 projects, allowing investors to maintain a more passive role while still meeting the program requirements. This professional management ensures that projects remain compliant with EB-5 requirements, meet job creation goals, and adhere to financial and operational standards.
• Documentation support: Regional centers supply essential project-related documents required for the I-526E and I-829 petitions, including detailed business plans, economic impact analyses, and other supporting documentation. This comprehensive documentation ensures that investors have the necessary evidence to demonstrate compliance with EB-5 requirements, streamlining the petition process and enhancing the likelihood of approval.

Step-by-Step Guide to Applying for an EB-5 Visa

Transitioning from an H-1B visa to an EB-5 investor visa does not have to be complicated. For a smooth transition, follow these steps:

1. Consult an EB-5 expert: Begin by speaking with a qualified immigration attorney experienced in EB-5 matters. They can help you understand eligibility criteria, timelines, and the documentation required. If you’re considering a regional center investment, ensure you engage with a USCIS-approved center that can provide comprehensive project details and compliance guidance.
2. Choose a project: Select an EB-5-compliant investment with the help of a regional center.
3. Conduct due diligence: Before committing funds, carefully review the project’s business plan, financials, and track record. Verify the credibility of the regional center, evaluate expected job creation, and understand the overall investment risk. This step is critical for your long-term success and peace of mind.
4. Source and transfer funds: Work with an immigration attorney to prepare documentation showing the lawful source of your investment funds and the path of funds to the EB-5 project.
5. File form I-526E: Once you have selected your project and prepared the source-of-funds documentation, your attorney will submit Form I-526E to USCIS. This petition includes all the detailed evidence of your investment and its job creation potential.
6. Wait for I-526E approval: USCIS processing times vary, but most petitions are reviewed within 12 to 18 months. During this period, stay in close communication with your attorney for updates and ensure any requests for additional evidence are promptly addressed.
7. Apply for legal status: After I-526E approval, you can take steps to obtain your conditional green card. If you’re in the U.S. on another status (like H-1B), you may adjust status through Form I-485. If you’re outside the U.S., you’ll go through consular processing at a U.S. embassy or consulate abroad.
8. Receive conditional green card: Upon approval, you’ll obtain a conditional green card and begin your 2-year conditional residence period. This grants you permanent residence on a conditional basis, allowing you to live and work freely in the United States.
9. Fulfill EB-5 requirements: Over the two-year conditional period, ensure the EB-5 project meets job creation benchmarks and maintain the required investment
10. File Form I-829: 90 days before your 2-year conditional residence period ends, file Form I-829 to remove the conditions. Approval of this petition grants you full lawful permanent residency, putting you one step closer to eventually applying for U.S. citizenship.

Case Studies

The success stories of Behring Regional Center EB-5 investors illustrate how our guidance and expertise help investors navigate the EB-5 process with confidence, ultimately achieving their long-term U.S. residency goals.

For one investor who filed their I-526 petition in 2017 and secured permanent green card approval in 2023, gaining U.S. permanent residence through EB-5 fundamentally transformed their life: it allowed for hassle-free international travel, eliminated the stress of periodic visa renewals, and enabled career mobility without needing employer sponsorship. As a result, they could take professional risks, embrace new opportunities, and enjoy a level of stability that is simply not attainable with a temporary visa.

Another EB-5 investor highlighted Behring’s unique, in-house knowledge of EB-5 regulations, construction, and development, noting how these comprehensive insights informed every aspect of their investment strategy. Together, these experiences demonstrate how Behring’s integrated approach makes the EB-5 journey more stable, efficient, and ultimately, more rewarding.

Common Concerns and Challenges: How Behring Helps You Overcome Them

While the EB-5 program offers significant benefits, H-1B holders may have valid concerns about transitioning:

1. Investment Risk:
   Concern: EB-5 projects carry financial risks, and investors worry about the security of their capital and the project’s viability.
   How We Help: Behring Regional Center carefully selects projects with robust business plans, strong market fundamentals, and clear job creation potential. We provide detailed financial and operational reports, so you understand the project’s outlook before committing. Our due diligence processes and ongoing oversight help reduce uncertainty, giving you greater peace of mind.
2. Complex Application Process:
   Concern: The EB-5 application can seem overwhelming, involving extensive documentation, source-of-funds verification, and compliance with USCIS regulations.
   How We Help: Our experienced team and network of immigration attorneys guide you at every stage—helping you gather the right documents, navigate legal requirements, and streamline filings.
3. Long Processing Times:
   Concern: EB-5 approvals can take time, leaving investors in a state of uncertainty about their ability to live and work in the U.S.
   How We Help: As an H-1B visa holder, you can leverage concurrent filing of your I-526E and I-485 petitions. This strategy often allows you to obtain an Employment Authorization Document (EAD) and advance parole in as little as 100 days. With these interim benefits, you can continue working and traveling while your EB-5 petition is pending, maintaining stability for you and your family.
4. Job Creation Requirements:
   Concern: Meeting the EB-5 job creation threshold can be complex, and investors worry about whether the project will generate enough jobs.
   How We Help: At Behring, we partner with reputable economists and use proven methodologies to forecast job creation. By selecting projects with robust job creation potential and tracking progress over time, we minimize the risk of not meeting the USCIS criteria.

Securing Your Future in the U.S. Through EB-5

Facing an H-1B layoff can be unsettling, but the EB-5 Immigrant Investor Program provides a tangible pathway to greater stability, flexibility, and long-term success in the United States. By leveraging expert guidance, well-structured investments, and thorough due diligence, transitioning from an H-1B to an EB-5 visa becomes an opportunity rather than an obstacle. If you’re ready to explore how the EB-5 program can help secure your future, we invite you to take the next step. Schedule a call with Behring’s team today to discuss your unique situation, understand your options, and set a course toward a more secure and independent life in the U.S.