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India & the EB-5 Visa Boom

India & the EB-5 Visa Boom

The EB-5 Program has recently seen a dramatic increase in the number of Indian EB-5 Visa applications filed. On April 6, 2018, U.S. Citizenship and Immigration Services (USCIS) announced that the congressionally mandated H-1B Visa cap for fiscal year 2019 had been reached within only five days of the agency opening applications. Yet again, the fates of many professionals and skilled workers in the US remain uncertain, driving interest in the EB-5 Visa program in an effort to attain security.

Once a little-known visa program, the EB-5 Program is becoming a common pathway for foreign nationals to immigrate to the USA. Due to immigration crackdowns and over-subscription to other visa categories, a number of other countries, including India, have recently turned to the EB-5 Program as a more secure way to obtain a U.S. visa. At the end of the 2017 fiscal year, 174 EB-5 Visas were issued to Indian nationals, a 17% increase from the previous year.

EB-5 Program applicants who invest $1 million in a new commercial enterprise (NCE), or $500,000 in an NCE located in a targeted employment area, and create 10 qualified jobs, are eligible for lawful permanent residence in the U.S. for themselves, their spouse, and their unmarried children under the age of 21.

The H-1B Visa used to be a popular choice for Indians, as they made up more than 70% of the H-1B Visa holders. There are several possible reasons for this rapid increase in EB-5 Visa popularity, and they are mostly centered around the disadvantages of the H-1B Visa. However, recent changes and possible changes to come have made Indians question whether they should apply:

  • H-1B applications are being scrutinized more closely.
  • Redefining of an H-1B “specialty occupation” to preclude many IT and other positions that may have more than one possible major field of study for entry into the occupation.
  • Denial of H-1B petitions that pay level 1 wages.
  • Requiring H-1B employers to identify in advance the specific itinerary of all work locations at which the employee will work during the course of the 3-year H-1B approval period. This is often not possible.
  • The potential shortening of the H-1B Visa term.
  • H1-B Visa holders’ spouses, who have an H-4 Visa, may lose their ability to work in the U.S. On December 14, 2017, the Department of Homeland Security published the agenda item “Removing H-4 Dependent Spouses from the Class of Aliens Eligible for Employment Authorization,” intending to revoke the employment eligibility of H-4 dependent spouses. The proposed regulation is reported to need further revision and finalization is expected by June 2018.
  • Massive backlog in the EB-2 and EB-3 immigrant visa categories. The wait time for a green card through an EB-2 Visa is currently anticipated to be 11+ years, while the wait time with an EB-3 Visa is currently anticipated to be 12+ years.
  • May not appeal to wealthier applicants who can apply to the EB-5 Program and obtain more benefits. The H-1B visa requires employer sponsorship, which means applicants are limited to where they can live and work, whereas, the EB-5 Visa has no such limitations.
  • Many employers are turning away H-1B Visa holders in favor of hiring U.S. workers. The “Buy American and Hire American” executive order directs federal agencies to review whether existing policies adequately prioritize American products and protect American workers. This was also reflected in USCIS’ stringent adjudication of H-1B petitions, as seen by 2017’s wholesale issuance of Request for Evidence (RFE) Notices and Notices of Intent to Deny (NOIDs). As a result, H-1B visas are increasingly difficult to obtain.
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