H-1B Visa to EB-5 Visa: Permanent Residency in the United States

Why are an increasing number of people are looking to the EB-5 Investor Visa after or instead of the H-1B Visa?

Next week our Managing Partner Mark Davies is leading a webinar on the subject of H-1B to EB-5. It will be worth listening in as industry experts will be explaining the relative merits of the two visa categories and how to transition between them. It will be of interest to anyone already in the United States on H-1B and anyone considering an H-1B application in future.

Sign up for the webinar by clicking here.

The future of H-1B

The H-1B visa has been under increasing scrutiny for some years now. The H-1B visa had its heyday during the dotcom boom of the early 2000s – with many tech workers moving to the United States in pursuit of good jobs and a bright future. But since then, the H-1B visa has faced a mounting image problem caused by instances of fraud and the perception that H-1B adversely affects the American workforce.

Both main political parties have overseen some form of restriction on H-1B. This process culminated in President Trump suspending the H-1B visa from June last year. Ostensibly this was because of Covid-19, but Trump never shied away from his declaring his opposition before the pandemic began.

President Biden has promised to target more highly skilled STEM graduates in the same breath as saying there is a need to protect American workers first. It is unclear how he will choose to balance these two often-competing aims – much will depend on the economic recovery from Covid – but a telltale sign came when Biden pointedly did not overturn Trump’s suspension of the H-1B Visa (preferring to let it lapse naturally at the end of March 2021).

The Future of EB-5

The future looks bright for the EB-5 Program if it gets through the June 2021 Regional Center reauthorization process as expected. The program brings in millions of dollars and creates hundreds of thousands of jobs at no cost to the taxpayer. So it comes as no surprise that the EB-5 program garners bipartisan support.

Direct EB-5 – where the investor makes and manages the investment themselves – is not up for reauthorization and will continue regardless of what happens in Congress next month. The majority of investors, usually upwards of 90%, opt to invest under the Regional Center program because of challenges with compliance. Each EB-5 investment needs to create and sustain ten American jobs, which can be tricky for a new business. Unlike direct EB-5 investors, Regional Centers are able to count “indirect jobs” and tend to use the funds for job-hungry projects like hotel builds.

Nevertheless, it is vital to do due diligence on the Regional Center and its project to identify any risks to your Green Card or the return of your capital. With background in both real estate and immigration law, our managing partner Mark Davies is able to assist clients with due diligence on their chosen project.

H-1B Visa India

While H-1B recipients come from all over the world, there is no denying that Indians are the overwhelming beneficiaries. Around three quarters of all H-1B visa holders are from India. It is for this reason that our upcoming webinar is being hosted by TiE Bangalore. TiE Global fosters entrepreneurship around the world and the Bangalore chapter is particularly active in this regard. Nevertheless, the information in the webinar will be relevant to people from all over the world.

H-1B Visa and EB-5 Visa Calendars

The H-1B visa lottery opens to applicants in April each year and places fill up very fast. Anyone who is unsuccessful needs to wait another year before applying. The EB-5 Investor Visa has no such calendar and applications are open throughout the year. There are just over 700 EB-5 visas available to each country each year. Very few countries come close to this limit, but a tiny minority of countries exceed it. When this happens, a calendar does come into play for EB-5. The visa year resets in October at which point the next tranche of circa 700 visas become available – but other factors also influence timings, e.g. processing efficiency at the US Citizenship and Immigration Services (USCIS). Currently only citizens of China and Vietnam face EB-5 delays, but demand has skyrocketed in India in recent years and the number of visa issuances often gets close to or just passes the annual cap.

H-1B, EB-5 and Time Limits

The H-1B visa is valid for up to six years at which point a person has to find an alternative visa solution or return home. The natural next step is often the EB-3 Visa: Permanent Residency for Highly Skilled Migrants, but for citizens of India and China there are delays to the EB-3 route because demand has been so high for so long.

In fact for Indians EB-3 delays are extremely long – the authorities are currently just getting around to applications submitted by Indians in 2011! This is one of the reasons why the EB-5 Investor Visa is emerging as an attractive alternative for many H-1B visa holders. EB-5 currently has no wait list for Indians, although the release of pent up demand after Covid could change this. So interested EB-5 applicants from India should apply as soon as possible. EB-5 offers permanent residency (Green Card) for a $900,000 investment per qualifying family unit. This means that unlike H-1B you can stay in America forever provided you do not do anything to jeopardize your status. Green Card holders can convert to citizenship provided physical presence conditions are met.

H-1B, EB-5 and Work

With the H-1B visa, applicants are tied to their employer and it is difficult (but not impossible) to change jobs. This puts the employee at a relative disadvantage when it comes to salary and other negotiations with an employer. It also means that the H-1B holder would have to return home if they lose their job and cannot find another. The EB-5 Visa offers a Green Card and with it the complete freedom to work anywhere in the United States (or not to work). It is possible to be retired, a student or unemployed. There is no connection between your employment status and your immigration status under the EB-5 Visa Program.

H-1B to EB-5 the Process

Our attorneys can guide you through the application process. If you are switching from H-1B to EB-5 you need to go through an adjustment of status and file Form I-485. There are some benefits to this over other EB-5 applicants as you may be granted employment rights in the US while you are waiting for the USCIS to process your application provided you apply for an Employment Authorization Document (EAD). Anyone outside the US considering EB-5 Visa as an alternative to the H-1B visa needs to enlist an attorney to prepare and submit an I-526 form. Either way, every EB-5 visa applicant must be able to document the source of the funds used to pay for your investment and prove that they came from legitimate sources. Contact our team to arrange a free consultation.

Read more about the EB-5 Investor Visa Program

Sign up for the webinar by clicking here.

This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


Investor Visa Application

Trump-Era Changes to EB-5 Investor Visa | Usimmigrationadvisor

The Biden Administration has moved to quash a lawsuit brought about by an EB-5 Regional Center that questioned the validity of changes to the EB-5 Investor Visa Program introduced in November 2019. By ratifying the changes, the Secretary of Homeland Security Alejandro Mayorkas puts an end to any speculation that the minimum investment level for the EB-5 Visa could be reduced back to $500,000 from the current $900,000.

Court Case

The principle line of argument in the court case was that the head of the Department for Homeland Security at the time had not been properly appointed. The then Acting Secretary, Kevin McAleenan, assumed leadership for the Department following the departure of Kirstjen Nielsen earlier in 2019.

The Government Accountability Office (GAO) released a decision on this issue last summer stating that McAleenan was not in the line of succession and that his leadership was therefore invalid. Mayorkas acted to re-ratify the changes to ward off any uncertainty – going forwards at least.

Old EB-5 Regulations

If it had been successful, the case could have forced a return to the pre-November 2019 regulations. This not only included the lower investment amount, but also different rules surrounding what governs a Targeted Employment Area (TEA). These are zones that qualify for a lower EB-5 investment level because they have weaker employment levels. Outside of TEAs, the minimum EB-5 investment level is $1.8 million (or $1 million prior to November 2019).

The increased investment amount since November 2019 has pushed the EB-5 Investor Visa out of reach of many potential investors . Many of these clients have shifted their interest in the US to the E-2 Treaty Investor Visa, which has lower investment amounts. There is no fixed investment level for an E-2 Visa, but it must be appropriate for the business being invested in and generally starts from around $100,000.

Upcoming EB-5 Reauthorization

A reversal to the EB-5 rule change would have been short-lived in any case. The EB-5 Regional Center Program is facing reauthorization in Congress before the end of this quarter (June 30). We are confident that Congress will support a long term reauthorization of a reformed program since EB-5 is responsible for creating so much employment and investment all across America.

An EB-5 reform bill introduced jointly by Senior Democrat, Patrick Leahy, and a senior Republican, Chuck Grassley aims to reauthorize the program through to 2026 and make reforms to ensure high standards are met by EB-5 Regional Centers.

Despite some uncertainty over the next few months, the future of the EB-5 program looks strong. It played a valuable role in helping America recover from the 2007/8 financial crisis and can support the economic recovery following the Covid-19 pandemic. EB-5 has brought in millions of dollars in foreign investment and has created hundreds of thousands of jobs all around the country. All at no cost to the US taxpayer.

What is the EB-5 Investor Visa?

The EB-5 remains a fast route to a Green Card (except for people born in mainland China who face delays because of strong historic demand). A single investment can cover a qualifying family unit (applicant, spouse, children under the age of 21). It is important to work with an immigration attorney from the outset of the process. One of the most complicated aspects of an EB-5 application is proving that your investment funds came from legitimate sources.

At Davies & Associates we support each EB-5 client with a strong and talented team, which includes not only immigration attorneys, but also tax lawyers, and accountants who can advise on remittance laws in your home country. Green Card holders are subject to tax on worldwide earnings, so it is important to understand and plan for this at the outset of the process.

Read more about EB-5 Investor Visas


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


Investor Visa Application

EB-5 Visa: Lawsuit Seeks to Overturn Investment-Level Increase

A lawsuit filed by an EB-5 Regional Center is taking aim at the November 2019 price hike for the EB-5 Investor Visa. If successful, the minimum investment amount for EB-5 would return to USD 500,000 in a Targeted Employment Area. A federal judge in California has indicated she may be willing to reverse the Trump-Era changes to the EB-5 program rules after a lawsuit filed by Behring Regional Center. 

If successful, any changes would likely be short-lived. The EB-5 Regional Center Program is set to expire at the end of June and a reform and reauthorization proposal has started working its way through Congress could set the USD 900,000 minimum investment level in stone.  It is our opinion that the new EB-5 law in June would be revised to increase the price back to itS current level.

This means that there may be an extremely short window of time, possibly as little as days, in which to file an EB-5 I-526 Petition at USD 500,000.   Properly preparing a case to be filed can take weeks or longer depending on where the funds are coming from and will require investors to fund an EB-5 project which is configured to accept investment at that investment level.  Any investor potentially interested in availing themselves of the USD 500,000 investment level should therefore have their case ready so it can be filed at a moment’s notice.  

The minimum investment requirement for the EB-5 Investor Visa to USD 900,000 in November 2019 to take account of inflation since the program’s inception in the 1990s. The $900,000 amount relates to investments in a Targeted Employment Area (TEA) – areas with relatively high unemployment. Outside of TEAs the minimum investment requirement rose from USD 1 million to UDS 1.8 million. The November-2019 rule change also centralised decision making around what constitutes a TEA, transferring authority for this to the Department for Homeland Security.

The rule changes had a significant impact on EB-5 uptake with a sharp drop-off after November 2019. This was partly due to so many people rushing to apply, exhausting pent up demand. Covid slowed the recovery, but green shoots have been emerging as the pandemic recedes. Long term reform and reauthorization in June will provide much-needed certainty and confidence to future investors. 

This federal court case could change calculations for some investors. If the price temporarily drops to USD 500,000 it could cause a massive rush to file EB-5 applications. The application process requires careful documentation of the source of funds used for the EB-5 investment. This can take time to prepare, so anyone considering an application or monitoring this court case for a drop in the investment level should contact us immediately. 

The court case comes at a time of brief uncertainty for the EB-5 Investor Visa Program. With reauthorization of the Regional Center Program required before the it expires in June, would-be investors need to weigh their options carefully. 

On the one hand, you could tie up your capital under uncertain conditions to pursue the EB-5 Regional Center in case it ends forever in June. Or on the other hand, you could wait until there is certainty in the second half of 2021, but know that the price of that certainty could mean the EB-5 route is closed to you forever. The risk is up to the client, but it is worth talking through your options with an immigration attorney. 

The likelihood is that the program will be renewed. The EB-5 Investor Visa brings in millions of dollars in investment and creates hundreds of thousands of jobs all across America at no cost to the taxpayer. It played a valuable role in America’s recovery from the 2008 financial crisis and could do something similar as the US economy recovers from Covid.

Anyone who has already applied for an EB-5 Visa but is waiting an adjudication may wish to file a writ of mandamus in federal court ahead of the June 2021 expiry date. Usually applicants should wait at least two years before resorting to legal action against the United States Citizenship & Immigration Services (USCIS), but the June expiration may change this. Contact us to discuss your specific circumstances.


How Could a Writ of Mandamus help with the Upcoming EB-5 Visa Reauthorization?

How Could a Writ of Mandamus help with the Upcoming EB-5 Visa Reauthorization?

The EB-5 Regional Center Program faces reauthorization in the US Congress before the end of June 2021. The likelihood is that the program will be renewed, but some EB-5 clients are choosing to mitigate any risk by filing a writ of mandamus.

Congressional Reauthorization

The EB-5 Regional Center program requires periodic reauthorization. This is usually bundled up with “must-pass” appropriations legislation, so there was rarely a chance it would not be renewed. This is not unusual, Congress has so much to consider they often package topics together to lighten the work load. However, this time around is different.

This year, the EB-5 Regional Center program has been decoupled from the “must-pass” spending bills and requires reauthorization by itself. This means Congress needs to evaluate the program on its own merits and determine its future.

The timing is good. The EB-5 investor visa program brings in millions of dollars in foreign investment and creates hundreds of thousands of jobs at no cost to the US taxpayer. It played a helpful role as the US navigated its way out of the 2007/8 financial crisis. It can do the same as the US economy recovers from Covid-19.

There are also thousands of people working in the EB-5 industry all over America. It is not an industry whose benefits accrue to a narrow cluster. In fact, the Targeted Employment Area (TEA) requirements deliberately try to target EB-5 investment at areas of high unemployment as well as rural areas. This aspect was strengthened during the most recent reform to the program in November 2019.

Risk to the EB-5 Regional Center Program

So things augur well for reauthorization. However, in the febrile world of American politics there is always a risk that it would not be renewed . And with risk comes uncertainty. If the program was discontinued, it is not yet clear how existing and new investors will fare.

What is the EB-5 Investor Visa Program?

For new investors, i.e. people who choose to file an EB-5 petition (Form I-526) between now and June, there is a trade-off. On the one hand, you could tie up your capital under uncertain conditions to pursue the EB-5 Regional Center in case it ends forever in June. Or on the other hand, you could wait until there is certainty in the second half of 2021, but know that the price of that certainty could mean the EB-5 route is closed to you forever. The risk is up to the client, but it is worth talking through your options with an immigration attorney. D&A offers free consultations on this an EB-5 Investor Visa more generally.

For existing investors – those that have filed their Form I-526 but have not yet had an adjudication – there are things you could do to try to push USCIS into making a decision on your case faster.

Speeding up your EB-5 adjudication

It is best to engage your immigration attorney at the outset of this process to make sure all steps are taken properly and in a timely fashion. In the first instance, petitioners should contact the USCIS ombudsman’s office. This may not ultimately expedite your adjudication, but it is helpful to show evidence of seeking a solution should a petitioner need to subsequently escalate their case.

The second, perhaps contemporaneous step, is to contact the senator or congressional representative covering the state or district where the EB-5 project is located. Depending upon your circumstances, contacting other lawmakers may also be appropriate.

Read more about delayed EB-5

Writ of Mandamus

After these two steps have been exhausted, and if they do not cause an adjudication then you could consider filing a writ of mandamus. This is a lawsuit in a federal court to determine whether your immigration petition has been unreasonably delayed.

Don’t worry, it will have no bearing on whether or not your I-526 application is successfully approved. It does, however, force USCIS into adjudicating your case quickly if it is judged to have been unreasonably delayed. Sometimes simply initiating proceedings can galvanize action as USCIS has been known to adjudicate a plaintiff’s application in order to avoid progressing with the lawsuit. 

It is advisable to seek advice from an attorney throughout. Contact D&A for a free consultation to determine whether a Writ of Mandamus would be advantageous for your I-526 petition. Our team has filed dozens of successful writs of mandamus actions against USCIS for unreasonably delaying immigrant petitions. We can assist regardless of whether your I-526 application was prepared and filed by Davies & Associates.

The average time between filing a writ of mandamus and receiving an adjudication is around two months, in some cases it can be significantly less. 


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.


Investor Visa Application

EB-5 Investor Visa Reauthorization in June 2021. What you need to know.




The EB-5 Regional Center program is facing reauthorization in June 2021. This has resulted in some uncertainty for current and future clients. Although we do not predict issues for people who file before June 30, there are ways to mitigate your risk:


1. If you are a D&A client, your case was recently approved and you reside outside of the US, we have already contacted the EB-5 unit at USCIS asking them to expedite the transfer of your file to the NVC so that visa processing can begin as soon as possible 

2. If your case was recently approved and you live in the US, we should file your Adjustment of Status application as soon as possible  

3. If your Form I-526 petition is still pending, you may wish to consider a Writ of Mandamus (more on this below)

Click here to learn more about the EB-5 Investor Visa
Click here to contact us to discuss your case directly

Background to Current EB-5 Situation

The EB-5 Regional Center program is currently authorized on a temporary basis.  This means that the program is authorized for a discrete period of time and then it expires unless the temporary authorization is extended.

The EB-5 RC Program is currently authorized through June 30, 2021.  This June 30 date is different than those prior authorization end dates because this is the first time that the EB-5  Program authorization is not tied in with the Federal budget appropriations bill.  In the past, when the budget bill would pass, it would mean the EB-5 RC Program would automatically be extended.  In December 2019 Congress decoupled the EB-5 RC Program authorization from the budget, so that means Congress needs to pass a separate bill to extend the EB-5 RC program.  
 
Senators Grassley and Leahy have a bill drafted that will extend the EB-5 RC Program permanently but it will need receive the approval votes of a majority of Senators to pass.  We are optimistic that it will pass in some format and thus there will be no interruption in the EB-5 RC Program.  However, until it passes, there is obviously some uncertainty on what might happen after June 30.  

USCIS has not given any clarity about what will happen (1) if there is a gap between June 30 and when a new EB-5 RC law is passed or (2) if Congress never passes a new EB-5 RC law and the EB-5 RC Program authorization permanently expires on June 30.  

Our View on Reauthorization of EB-5 RC Program

We are optimistic that in the scenario where there is a gap in time between June 30 and when a new law is passed it will not impact any EB-5 petitions that were filed prior to June 30, 2021.  There have been periods of time in the past when the federal budget did not pass in a timely manner and thus the EB-5 RC Program experienced short periods when it was unauthorized—those short periods of time when the EB-5 RC Program experienced a gap in authorization did not have any impact on the EB-5 applications that were pending with USCIS at the time.  We are also optimistic that even in the unlikely event that Congress never passes a new law that reauthorizes the EB-5 RC Program that USCIS will continue to process all EB-5 related benefits for those who had pending or approved Form I-526 petitions as of June 30.

IIUSA’s View on EB-5 RC Program Reauthorization

In the last two weeks a well-known and respected EB-5 lawyer presented IIUSA’s view on the EB-5 RC Program reauthorization. This view is that if the EB-5 Regional Center Program is not reauthorized, then anyone who is not in the United States on a “conditional green card” on June 30, 2021 will have their EB-5 application terminated and will then have to re-apply all over again (probably with fresh funds) if and when the program comes-back.

How This Impacts My Case

1.         What if I have not filed my EB-5 petition (I-526) before June 30, 2021?:

If the program is allowed to expire in June 2021, then you will be unable to obtain a U.S. green card through the EB-5 RC Program and you would have to wait to see if the EB-5 RC Program is brought back in the future.


2.         I have filed an I-526 but it is awaiting adjudication:

Although the risk may be small, under the IIUSA view your case would be terminated and you would have to make a fresh application in a new project in the future.



3.         I have an I-526 approval but I am awaiting a consular interview:

In this circumstance we believe that the risk to you is lower, although under the strict IIUSA view your case would still be terminated.
 

Writ of Mandamus

 If your Form I-526 petition is still pending, you may want to file a complaint against USCIS in Federal court as soon as possible to ask the court to issue a Writ of Mandamus (WoM) that will order USCIS to make a speedy decision on your case.  Please contact us if you would like to discuss this Writ of Mandamus option further.

While our firm has traditionally counselled clients that there is no guarantee with a WoM and that filing a WoM may in fact have no impact on their I-526 case until the I-526 filing has been pending for two years, the June 2021 reauthorization issue changes our views of the risks involved. Please note, filing a WOM requires an additional fee to be paid. 


Please note, EB-5 applications related to direct investment in a company (meaning NOT done through a Regional Center) are not impacted at all by this June 30 reauthorization date.Copyright © *2020* *Davies & Associates*, All rights reserved.


 This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.

EB-5 Source of Funds for Italians Webinar

EB-5 Source of Funds for Italians. Webinar.

Join Mark I. Davies, our chairman, and Matteo Tisato, Senior Immigration analyst in our Italy Practice for a webinar with EB5AN today at 2pm EST / 8pm Italy. Click the link below to register & the same link to view a recording after the event.

Source of Funds for EB-5

In order to ensure the integrity of the EB-5 Investor Visa Program, applicants must be able to document where the funds used to pay for their Green Cards come from. An applicant must demonstrate that they are the owner of the funds being invested and that they came by these funds through legal means.

Since the total investment requirement for EB-5 is a minimum of $900,000, many of our clients need to pull together funds from multiple different sources. This can include wages, the sale of property, capital gains on investments, gifts from friends and family, as well as loans.

In reality this can be quite complicated, and your EB-5 immigration attorney will play a vital role in helping you to make strategic decisions about which funds to use for your EB-5 investment.

For example, you will need to prove that all taxes have been paid on the sources of income and that there is appropriate collateral against any loans.

Crucially, it is important that the relevant documents are translated into English. Therefore, it is very helpful to work with law firms with in-house Italian language capabilities. Matteo Tisato, our Senior Immigration Analyst, works with our Italian clients in this respect.

Davies & Associates Source of Funds team across the United States is highly experienced. They have dealt with hundreds of cases and have a 100% success rate in this aspect of the application.

What is EB-5?

The EB-5 visa grants a person US permanent residency (Green Card) in exchange for a minimum $900,000 investment. A single application and investment can include the primary applicant, their spouse, and any children under the age of 21.

In addition to documenting the Source of Funds, the other key requirements of EB5 are are

  • invest in a New Commercial Enterprise
  • create at least ten jobs
  • invest at least $900,000 in a Targeted Employment Area or $1.8 million outside of these areas.

To help ensure compliance with the rules and to minimize risks to the Green Card, the vast majority of EB-5 investors elect to work with a Regional Center, but it is possible to make and manage the investment yourself in so-called “Direct EB-5”.

Webinar

On today’s webinar, Mark and Matteo will be joined by Sam Silverman and Michael Schoenfeld, cofounders and managing partners of EB5 Affiliate Network (EB5AN). a leading EB-5 consultancy and Regional Center network.

Our appearance alongside EB5AN is in no way an endorsement of their work or projects. As a law firm we offer our clients impartial due diligence on their chosen Regional Center projects. Our attorneys assist clients with identifying the risks to both their Green Card and the return of their capital – whichever Regional Centers they shortlist.

The webinar is scheduled for Thursday, February 18, 2021 and will share valuable information on the challenges EB-5 investors face with respect to of source-of-funds documentation. The webinar will break down this complicated issue for an Italian audience, with Matteo from our Italy team on hand to provide translation into Italian where necessary.

The EB-5 program faces reauthorization at the end of June 2021. The likelihood is that the program will continue, given the large number of jobs it creates and the billions of dollars in investment it brings to the United States. Yet, nothing can be taken for granted. Anyone considering the program should consider acting before the end of June. Given the time it takes to document Source of Funds to prepare an application, the time to start is now.

Please click here to register for the webinar, or to view a recording of the webinar.


This article is published for clients, friends and other interested visitors for information purposes only. The contents of the article do not constitute legal advice and do not necessarily reflect the opinions of Davies & Associates or any of its attorneys, staff or clients. External links are not an endorsement of the content.