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Which immigrants can most benefit from the EB-5 program?

H-1B workers, L-1 workers, and F-1 students

The long employment-based green card backlog waiting time combined with increasing uncertainty in an existing job and in the prospect of obtaining a new job are causing tremendous anxiety among young professionals and students from abroad. This problem is particularly acute for those H-1B visa holders who are reaching the six-year limit on their H-1B visa. If the H-1B visa holder is one year into the process of applying for permanent residence, then he or she can apply for extensions beyond the six-year limit in one-year increments. If the H-1B visa holder has an approved labor certification and an approved I-140 petition, then he or she can obtain extensions in three-year increments. However, once the H-1B visa holder goes beyond the six-year limit, if he or she is laid off, then the ability to extend the H-1B visa is gone, and unless the person can qualify for a different visa such as an O-1, E-1, E-2, or TN visa, then it becomes necessary to leave the U.S. and wait outside for a year in order to restore H-1B visa eligibility.

Even if the H-1B visa holder manages to hold on to the job and the green card sponsorship, how many years will it take to get the green card after all of the years of waiting? 6, 8, 10 years perhaps? If you are an Indian or Chinese professional with an advanced degree, no matter that you have the advanced degree, due to your country-specific green card backlog in the EB-2 category, you are barely better off than your fellow countrymen with just a bachelor’s degree. Misery loves company in the “from now until forever” backlog waiting line.

For F-1 students, the current economy has created an unwelcoming job market, particularly at a time when there are many highly qualified U.S. citizens and permanent residents available for hire, who do not need H-1B visa sponsorship. In some cases, students are even having a difficult time to find an employer even just to maintain eligibility to remain in the U.S. for the 12- to 27-month Optional Practical Training period, let alone to find sponsorship for an H-1B visa or the green card.

With the help of the EB-5 program, people in these anxiety-filled situations can go to the head of the line for the green card. The EB-5 program has its own separate annual quota of 10,000 green cards that has not yet come close to being exhausted, and so there is no backlog waiting line. The only delay is the approximately one year that it takes to go through the EB-5 immigration process. Once the EB-5 investor obtains conditional residence, after that approximately one-year processing time, he or she has all of the rights and benefits of a permanent resident, which means he or she is no longer dependent on the existing U.S. employer, or on finding employment with a U.S. employer, and can even go into business for himself/herself. This means freedom, more career options, competing on equal terms with U.S. citizens and permanent residents in the labor market and business world, and security that one can stay in the U.S. As long as the EB-5 investor maintains his or her investment in a regional center that follows through with its business plan that has the effect of creating 10 jobs per investor, then the EB-5 investor will also receive permanent residence after the two-year conditional residence period.

E-2 investors, E-1 traders, L-1 transferees

Often people come to the U.S. under an E-2 investor visa, E-1 trader visa, or an L-1 transfer visa based on operating their own business in the U.S., or as a manager or specialist in such a business, but then get stuck on the “visa renewal merry-go-round.” In other words, they keep living their lives in fear of not getting their visa renewed the next time it comes up for renewal. Employees who have no ownership in the company have at least the possibility of being sponsored by the employer for the green card, albeit with a waiting period of 7-10 years through the green card quota backlog. The owners of such businesses, who are in the U.S. on a temporary visa, do not even have this option, at least not through their own company. Business owners, or their spouses with a work authorization, can find sponsorship with third-party businesses. The spouse with a work authorization can at least work for the sponsor, but the business owner does have to continue working for his or her own company until obtaining a work authorization in connection with the green card process before working for the sponsoring company; however, the work authorization in connection with the green card process comes only after the long green card backlog waiting period once it becomes possible to apply for adjustment of status.

Once again, all such sponsorship is subject to the 7-10 year backlog waiting period, unless the person has an advanced degree, and can qualify in the EB-2 category for advanced degree professionals (and is not from India or China, which have a backlog in this category, as well). Also, all such sponsorship is subject to the requirement of proving that there is no able, willing, qualified, and available U.S. worker for the job, which has become very difficult to accomplish in the current job market. Alternatively, if the person has extraordinary ability in the sciences, arts, education, business, or athletics, it is possible to skip the labor certification and there is no green card quota backlog.

Many or most people do not qualify for any of the above-mentioned green card options, and so they are stuck. For those who have the economic means to invest under the EB-5 immigrant investor program, that has become a welcome option for escaping the “visa renewal merry-go-round” and the green card quota backlog. The EB-5 green card category does not require any labor certification, does not require extraordinary ability, and it has an annual green card quota that has never been exhausted, and will not be exhausted for the foreseeable future.

P-1 Athletes and Performing Artists

USCIS can be very difficult and arbitrary in deciding who makes the cut in qualifying for a green card for extraordinary ability. There are many successful professional athletes and performing artists whom USCIS would not approve as having extraordinary ability, since USCIS has arbitrarily set the standard for extraordinary ability so high. Particularly if the athlete or performing artist has achieved sufficient financial success to make a $500,000 investment, then the EB-5 immigrant investor program can be the fallback plan if the person is not approved in the EB-1 extraordinary ability category.

For those of you who are wondering how you can come up with the money to make the necessary $500,000 investment, please see our blog posting on the different sources from which EB-5 investors can derive the investment funds.

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Anthony Olson, P.A. - Sarasota Immigration Attorney 
2020 Cattlemen Road, Suite 100, Sarasota, FL 34232 See map 
Telephone:  +1 (941) 362-7100 
Website address: http://www.immigrationvisausa.com/ 
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