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The H-1B vs. the EB-5 Visa

While the H-1B visa has been a popular choice for professionals for more than a decade, tighter restrictions and increased demand have made it more difficult to secure this type of visa. Consequently, many people are looking for alternative ways to live and work in the United States. The EB-5 program offers a viable alternative that allows immigrant investors greater freedom. Before deciding on a visa type, compare the H-1B and EB-5 programs to fully understand the pros and cons of each one.

An Overview of the H-1B Program

The H-1B visa program allows employers to hire qualified foreign workers to work in the United States temporarily in specialty occupations. Although the H-1B is a nonimmigrant visa, it is a dual intent visa, which means a person who intends to become a permanent U.S. resident at some point in the future is allowed to apply for and hold this type of visa.

Because this is a work visa that relies on sponsorship, applicants must first find U.S. jobs classified as specialty occupations by the United States Citizenship and Immigration Services (USCIS) and secure employer sponsorship. To be considered a specialty occupation, a job must meet one of four eligibility criteria:

  1. The normal minimum entry requirement for the position must be a bachelor’s degree or higher.
  2. The degree requirement for the position must be standard in that industry or the job must be so unique or complex that only someone with a degree can do it.
  3. The employer must usually require a degree or equivalent qualification for an employee in that position.
  4. The specific duties related to the job must be so complex and specialized that only someone with a bachelor’s degree or higher has the knowledge to do the job.

Consequently, to qualify for a job classified as a specialty occupation, a person must meet one of the following four related criteria:

  1. He or she holds a bachelor’s or higher degree required to perform the job and conferred by an accredited U.S. college or university.
  2. He or she holds a degree from a foreign higher education institution that is equivalent to the degree from an accredited U.S. institution, as described above.
  3. He or she holds an unrestricted state certification, registration, or license that authorizes him or her to practice the specialty occupation in the state in which the potential employer operates.
  4. He or she has education, training, or experience in the specialty occupation that is equivalent to the completion of a degree from an accredited U.S. institution or equivalent foreign institution, as described above, and the person must demonstrate his or her expertise in the field through positions of progressively greater responsible directly related to the specialty.

Therefore, the H-1B visa is available only to specific applicants who meet the criteria set by the USCIS.

Challenges Applicants Face in the H-1B Program

Congress has capped the number of H-1B visas available each year at 65,000, with an additional 20,000 available for international students set to graduate from U.S. institutions with a master’s degree or higher. Because these visas are in great demand, the last 16 years have seen application numbers that far exceed the limits set by Congress. For example, for the 2020 financial year, the USCIS received more than 200,000 applications.

The popularity of the program causes several obstacles for visa applicants. First, when demand exceeds availability, the USCIS uses a lottery system to select applicants. Thus, whether a person’s petition will be allowed to continue depends on a system of random selection. Second, the high demand has led to a significant backlog in associated green card applications and, consequently, long waiting periods. Applicants from some countries face wait times of up to 10 years, if not longer, if they follow the H-1B to EB-2 route to permanent residency.

The H-1B visa involves several additional restrictions. While the visa holder’s immediate family (spouse and children younger than 21) may live in the United States while the visa remains valid, family members are not eligible to work while holding the H-4 visa for which they qualify. As of June 2019, the holders of H-4 visas can apply for employment authorization documents (EADs) if the main visa holder’s I-140 application has been approved or if the H-1B visa has been extended beyond six years. However, this policy is subject to change.

Furthermore, under the current administration, the program has become subject to greater scrutiny, which has reduced employer interest. The USCIS visa extension review policy has also been revised, with officials now disregarding previous applications and treating each extension application as a new petition. This involves the submission of additional supporting documents, and the number of Requests for Evidence (RFEs) issued is likely to increase.

In light of not only the existing restrictions and challenges in the H-1B program but also the uncertainty created by the current levels of political discord and the possibility of even more future restrictions, many would-be immigrants are looking to the EB-5 program to secure green cards.

An Overview of the EB-5 Program

The EB-5 program, which is also managed by the USCIS, was created to bring foreign investment into the United States in exchange for permanent residency. Since its inception in 1990, the program has been extended annually, and 10,000 EB-5 visas are available each year to foreign entrepreneurs and their families.

To qualify for a green card under the program, an EB-5 investor must invest a minimum of $900,000 in a commercial enterprise, with the investment remaining at risk throughout the immigration process. The investment must also create 10 new full-time, permanent jobs for U.S. workers.

The ideal outcome for the EB-5 investor is permanent resident status and the preservation of his or her capital. Investing in a quality project with professionals who have a proven record of success increases the likelihood of a positive outcome.

The Advantages of the EB-5 Program

Compared to the H-1B program, the EB-5 program holds several benefits for applicants and their families. To qualify for an EB-5 visa, the applicant does not need an offer of employment and does not need to complete the labor certification process. Additionally, EB-5 applicants do not need any exceptional skills or qualifications; the program is open to people of all backgrounds.

The ideal outcome of participating in the EB-5 program is securing a green card. Green card holders, or permanent residents, face no restrictions in taking up employment: they have the same options as citizens. Permanent residents can change jobs without worrying about finding sponsorship to ensure that their visas remain in status, and they can work for companies that do not qualify for the H-1B program. They can work anywhere within the United States, and they can start their own businesses. Green card holders also have the option of becoming U.S. citizens after five years, and they are eligible for Social Security benefits when they retire.

The benefits of permanent resident status extend to college admission and tuition costs. Due to increased competition for international student spots at U.S. universities, the admission rate for international students is significantly lower than the domestic student admission rate. Therefore, applying to a U.S. university as a U.S. resident drastically increases the odds of admission. Furthermore, in-state tuition is significantly cheaper than international tuition costs, and green card holders can save more than $100,000 if they establish in-state residence. Residents are also eligible for financial aid and scholarships.

Traveling internationally is easier as a permanent resident than as a temporary visa holder. Green card holders do not have to fear being denied re-entry, and they benefit from visa waivers in certain countries.

Finally, permanent residents can sponsor their spouses and unmarried children to obtain permanent residence. A green card also allows access to financial services such as mortgages and health and life insurance.

The Disadvantages of the EB-5 Program

While obtaining permanent resident status through the EB-5 program holds many benefits, the program also has drawbacks. These include the high investment amount, the limited number of visas available, and a lack of expedited processing. Investments also carry additional costs, such as administrative fees, professional fees for immigration attorneys and other professionals, and filing fees.

High application volume from several countries has resulted in backlogs that delay visa issuance, but depending on the nation, these backlogs in the EB-5 program might be less significant than those in other programs. For example, Indian nationals currently face shorter wait times for EB-5 green cards than they do for EB-2 green cards. This differs according to the demand for each type of visa in each country.

Is an EB-5 Visa the Right Choice for You?

Everyone has unique needs and resources, and the complexity of the U.S. visa system can easily lead to confusion about program requirements and eligibility for the various visas and permits. When choosing a visa type, making an informed decision is crucial. Making a mistake can not only be expensive—it can also delay your journey to permanent residency.

To make the right decision for you and your family, discuss your options with an immigration attorney or the team of specialists at EB5AN. Get in touch today to learn more about the EB-5 program and your options for U.S. permanent residency.