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H-1B Visa Holders: Could the EB-5 Visa Be Your Immigration Ban Alternative?


The COVID-19 pandemic was the catalyst for a temporary suspension on immigration to the United States beginning in late April 2020. President Trump initially signed an executive order for a 60-day moratorium on immigrant travel. Following the order’s expiration, he extended the ban until the end of 2020 and further expanded the classes of immigrants affected. His reasoning included a need to save U.S. jobs.

H-1B visa holders were among the immigrants affected. The suspension of H-1B immigrant travel affects thousands of immigrant hopefuls as this program is one of the most preferred U.S. work visa options available. Unfortunately, nearly all other work-based immigration programs are prohibited under the ban, leaving many without a clear path to the opportunities that life in the United States can offer immigrants.

That said, there is still one route worth considering: the EB-5 Immigrant Investor Program.

An Overview of the H-1B Visa Program

The H-1B visa provides an opportunity for foreign workers to live in the United States on a temporary basis while working for a sponsoring employer. Annually, this lottery program earmarks 65,000 U.S. visas for working immigrants, placing it among the most popular work visa options. Foreign nationals holding specialized degrees, certificates, and skill sets who can obtain sponsorship from a U.S.-based employer are encouraged to apply. The 2020 immigration ban has complicated matters, however.

Corporate entities – especially in the tech arena – have been particularly vocal on their opposition of the ban due to its significant impacts on business. In response, in early August 2020, the government announced a set of limited exceptions to the ban for immigrants who could demonstrate that their presence in the United States was in the nation’s best interest—namely, those with the abilities to support efforts to combat COVID-19 or assist in rebuilding the country’s failing economy, among other reasons.

Achieving an exemption in the face of an immigration ban like this isn’t easy, though. Many 2020 H-1B visa applications are still being denied. Denial rates for H-1B applications have increased by at least 10 percent among top U.S. companies, according to the National Foundation for American Policy (NFAP). The overall H-1B denial rate of 29% in NFAP’s 2020 data is a 23% jump from 2015.

The EB-5 Program as a Viable Alternative

The alternative to an H-1B visa for some immigrants at this time may be the EB-5 program. Due to its valuable contributions to the U.S. economy, this immigrant investor program has largely escaped the federal ban. The EB-5 Immigrant Investor Program allows foreign investors a path to secure U.S. green cards for themselves and qualifying family members in exchange for a minimum investment in qualifying economic projects.

Basic Program Requirements

There are five basic program requirements for participation in the EB-5 program and to secure U.S. residency:

EB-5 Project Selection: EB-5 investors have two options – a direct investment or an investment in a regional center.

Job Creation Requisite: Each minimum investment must be proven to ultimately produce at least 10 new, full-time employment positions for U.S. workers that remain viable for two years or more.

Minimum Capital Commitment: The minimum investment required is $1.8 million – or $900,000, if an EB-5 project lies within a targeted employment area (TEA).

Source of Funds: Whether from employment wages, the sale of personal assets, or money gifted by relatives, all sources of funds must be proven lawful.

Qualifying Family Members: An investor’s spouse and any children under the age of 21 who are not married at the time of immigration may apply for an EB-5 green card under the same investment.

When your goal is residency in the United States, this easy-to-understand program remains one of the quickest routes to securing a green card at this time.

Above and beyond, the EB-5 program is actually preferable over the H-1B visa due to the possibility of securing permanent residency status instead of just temporary residency rights like the H-1B. Furthermore, EB-5 visa recipients have the freedom to work anywhere in the United States instead of being limited to a single sponsor. Five years after permanent residency status is granted, EB-5 investors also become eligible to apply for U.S. citizenship if they wish.

The best part? Current H-1B visa holders can convert to an EB-5 visa. To learn more about how, reach out!