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How to Convert an H-1B to an EB-5 Visa

Because of the limitations of the H-1B visa program, foreign workers who want to make a life in the United States are starting to explore other avenues to U.S. permanent resident status. Participating in the EB-5 Immigrant Investor Program is a viable, and increasingly popular, alternative.

What is the EB-5 Program?

The EB-5 program allows foreign entrepreneurs to obtain permanent U.S. residence by investing $900,000 or $1.8 million in a project that creates 10 full-time, permanent jobs for U.S. workers. To qualify for the lower investment amount, the project must be located within a targeted employment area (TEA), which is either a rural area with fewer than 20,000 inhabitants or an area with an unemployment rate 150% of the national average.

Investors can also choose between direct investments and regional center investments, each of which has pros and cons. Investors with significant managerial experience may be interested in direct investments, as they can engage directly in managerial tasks and retain more control over their investment. Regional center investment, however, is more popular, given that it generally frees investors from the need to engage in managerial work. Regional center investment also comes with relaxed job creation requirements, making it easier to fulfill EB-5 program requirements. Investors must understand their options before choosing the investment type that suits them, but all successful EB-5 investments lead to the same outcome: U.S. green cards for the investor and their immediate family members.

Can You Apply for an EB-5 Visa while Holding an H-1B Visa?

If you have a valid, in-status H-1B visa, you are free to submit multiple petitions at the same time to United States Citizenship and Immigration Services (USCIS). Thus, you can take part in the EB-5 program while you are working in the United States without canceling your H-1B visa or any pending green card petition. All you need to do is maintain your H-1B status until the EB-5 petitions you have filed with USCIS have been approved: first, I-526, Immigrant Petition by Alien Investor, and, subsequently, I-485, Application to Register Permanent Residence or Adjust Status.

Although the H-1B visa is a nonimmigrant visa type, it allows dual intent. “Dual intent” simply means that even though you have entered the United States on a nonimmigrant visa, you will probably pursue an immigrant visa at some later stage—and you will be allowed to do so. In contrast, tourist visas, for example, are also nonimmigrant visas but are typically issued with the requirement that the applicant or visa holder has no intention to remain in the United States. Those suspected of breaching this requirement can be refused entry into the country or be deported.

Understanding the Implications of Converting an H-1B to EB-5 Visa

The first step in the process is to consult an immigration attorney to ensure that you fully understand the implications of submitting simultaneous applications and of committing the investment amount required by the EB-5 program. Because you are permitted to file multiple green card applications at the same time if you hold an H-1B visa, you do not need to cancel any pending or approved applications. For example, if your I-140, Immigrant Petition for Alien Workers application is pending or approved, you do not need to cancel it. Consequently, if you lose your I-526 approval, you can notify USCIS that you will revert to the I-140. If you have previously filed an I-485, Application to Register Permanent Residence or Adjust Status petition and receive approval, you can withdraw your EB-5 petition, but you probably will not be able to recover your EB-5 investment.

In essence, making an EB-5 investment while holding H-1B status can serve as a backup plan or insurance to safeguard your immigration to the United States. If you are not certain what the future holds for you, you can invest in an EB-5 project to ensure that even if your other routes of immigration fail, you can still enjoy a life of freedom in the United States. Of course, it is crucial to speak with an experienced immigration attorney to determine the best options for you.

Must H-1B Visa Holders Meet Any Special Requirements to Invest in EB-5 Projects?

When it comes to investing in an EB-5 project, there is one significant difference between an immigrant investor outside the United States and an investor who is already in the United States: If you are already in the United States, you must be an accredited investor to invest in a securities-related offering.

Usually, if investing via an EB-5 regional center, EB-5 investors become members of or partners in a limited liability company (LLC) or limited partnership (LP) formed by the regional center. The offer to invest in this type of business is called a “security.” The regional center, or the issuer of the security, must register the offering with the U.S. Securities and Exchange Commission (SEC), unless the offering is categorized as an exemption. Therefore, if you want to invest in a regional center project that is not exempt from registration, or any project with a private placement memorandum (PPM), you must be an accredited investor.

To qualify as an accredited investor,

  • (i) you must earn $200,000 in your individual capacity for two consecutive years and expect similar income for the current year, or
  • (ii) you and your spouse must earn a combined income of $300,000 for two consecutive years and expect similar income for the current year, or
  • (iii) you and your spouse must have a net worth of $1 million, excluding your primary residence, based on assets anywhere in the world.

While no official form needs to be submitted to a government or other agency to become certified as an accredited investor, for the purposes of EB-5 petitions, it is best to obtain a letter from your accountant or immigration attorney verifying your accreditation status.

If you do not meet any of the three requirements to become an accredited investor, you can still invest in EB-5 projects as the manager of an entrepreneurial or direct pooled project. If you hold an H-1B visa, you can own and manage your own company, and you are allowed to invest in an existing business under the EB-5 program. However, you must prove that you are meeting the job creation and investment requirements, and this might be more complicated and challenging.

The EB-5 Program Application Process

Once you have identified an EB-5 investment project that suits your needs, you can begin the application process. The basic steps to obtaining an EB-5 green card are (i) investing the required capital amount and filing an I-526 petition, (ii) securing conditional permanent residence by filing Form I-485, and (iii) after two years, filing an I-829 petition to remove the conditions on your permanent resident status.

While this may seem simple enough, each petition is complex and requires substantial supporting documentation. Therefore, EB-5 investors are highly encouraged to work with EB-5 professionals to avoid Requests for Evidence (RFEs) and other delays, or the outright denial of their petition.

The I-526 petition is a particular challenge for many EB-5 investors. The I-526 petition requests information on you, your EB-5 capital, and the viability of the project you are investing in. If you are investing in a project for the lower required investment amount of $900,000, you must also provide evidence supporting the project location’s eligibility as a TEA. Since this can be a complicated process, investors are urged to consult experienced EB-5 immigration lawyers to help guide them through the process.

One requirement that many EB-5 investors find particularly time-consuming is the process of proving the lawful sources of their EB-5 capital. Per EB-5 program requirements, all funds invested in an EB-5 project must be demonstrated, with a preponderance of evidence, to have originated from lawful sources. You may source your EB-5 capital from any number of sources, including income, the sale of assets, investments, loans, inheritance, and gifts, but regardless of the source, you must prove its legality. In some cases, the source-of-funds requirement can extend even beyond you or the direct capital—for example, if you receive funds as a gift from a relative, you must demonstrate that they obtained the funds lawfully. Similarly, if you invest money you inherited, you must prove that the deceased had been in legal possession of the funds, or if you use a loan secured by your own assets to invest in an EB-5 project, you must show that you obtained the assets legally.

The Benefits of Becoming an EB-5 Investor

The EB-5 program holds several benefits compared to the H-1B route to permanent resident status. For those facing lengthy delays in the I-140 process, the EB-5 program could offer a faster route to a green card. Additionally, because of the restrictions introduced to the H-1B program under the Trump administration, the EB-5 program allows greater freedom not only for applicants but also for their spouses and families.

EB-5 investors cite numerous reasons for participating in the program and obtaining permanent resident status in the United States, including the lucrative business opportunities of the world’s largest economy, the freedom and political stability in the land of the free, and the chance to offer a brighter future to their children. Since your spouse and unmarried children younger than 21 are also eligible for EB-5 green cards, an investment in the EB-5 program constitutes an important investment in your family’s future.

Contact us today to find out whether converting your H-1B visa to an EB-5 visa is the right choice for you and to learn how we can help you.