Pursuing the American Dream: EB5 as an Emerging Alternative Amidst H1B Visa Challenges

Peter Calabrese, CEO of Wall Street-based CanAm Investor Services, noted that in 2022, Indians requested EB-5 visa classification changes at a rate double that of the previous year.

As the layoff season continues unabated in the U.S. technology sector, the American Dream transforms into a nightmare. The loss of employment, coupled with the problematic complexities of the H1B visa program, is compelling many ambitious Indians to consider EB-5 or the immigration-by-investment visa.

According to Layoffs.fyi, Google, Microsoft, Meta, and Amazon are among the major tech companies that have drastically reduced employment in recent months in an industry that has lost over 285,000 workers globally since last year.

Most tech companies laying off employees are headquartered in the United States, with Indian nationals reportedly suffering the most. According to a January PTI report, industry insiders estimate that 30 to 40 percent of those laid off are Indian technology professionals.

Most laid-off Indians are in the United States on an H1B visa. It leaves them scrambling to find a new employer within 60 days willing to sponsor their H1B program. Failure to do so would force them to leave the country and return to India, which appears to be the more likely outcome in a sector-wide environment of job losses.

According to experts, EB-5, which entails a high cost of capital, may provide Indians, both in the United States and their home country, with practice all solutions to fuel their immigration goals and find a path to permanent residency.

Understanding the Functioning of the EB 5 Visa

Following the US Immigration Act of 1990, immigrants, along with their spouses and unmarried children under 21, are eligible for an EB-5 visa if they invest a specified amount in a US-based business that creates jobs for at least ten qualified American workers.

Under the current regulations, the minimum investment amount is $1,050,000 (Rs 8.6 crore), but this can be reduced to $800,000 (Rs 6.4 crore) if the funds are invested in a "targeted employment area (TEA)," which is typically a rural area with a high unemployment rate.

According to immigration experts, EB-5 visa holders are eligible for a conditional green card, which is typically issued within two to three years. After two more years, a petition can be filed to convert the conditional green card into a permanent green card, paving the way for permanent residency and citizenship.

In contrast to the H1B program, EB-5 visa holders are not subject to restrictions on where they can study or work. They may also establish their businesses in any region of the country.

Can EB-5 Visa Provide Relief to Indian Workers Who Have Been Laid Off?

Indian nationals on H1-B visas who apply for an EB-5 visa may beat the 60-day countdown that begins when they lose their jobs. It was made possible by the EB-5 Reform and Integrity Act, passed in March of last year, and permits concurrent filing for the change in visa status.

Under the new EB-5 statute, EB-5 investors can file a petition for adjustment of status (I-485) concurrently with their EB-5 petitions. It stops the 60-day countdown, allowing H1B professionals to remain in the United States until they receive their green cards.

In addition, applicants can apply for employment authorization along with their application for adjustment of status, allowing them to work in the United States until they become permanent residents.

Peter Calabrese, chief executive officer of Wall Street-based CanAm Investor Services, noted that Indians are displaying considerably more interest in EB-5 visas in the tumultuous US tech industry.

The change allowing Indian nationals working or studying in the United States to simultaneously file for a visa status change while still in the country has been a true game-changer. Data indicate that in 2022, Indians requested conversion of their current visa to an EB-5 visa at a rate double that of 2021.

However, because EB-5 requires a minimum investment of nearly Rs 6.4 crore, Lohia noted that this option is not for the masses. He stated that even though the price is high, many professionals can afford it because they have received stock options from companies like Tesla and Amazon.

Increase in the Number of Indians Applying for EB-5 Visa?

While official data on the number of Indians who have applied for EB-5 is unavailable, investor service firms report increased inquiries and applications made through consultation by Indian nationals over the past year.

Based on a recent data analysis, they observed a dramatic 155 percent increase in EB-5 inquiries across all countries in 2022 compared to the previous year. They received over three times as many inquiries from Indian investors in 2022 compared to the previous year, and this trend is expected to accelerate in 2023 according to Calabrese.

Recent data on citizenship renunciations released by the Indian government reflect an increase in the number of Indians seeking better opportunities in the West. Over 2.25 lakh Indians renounced their citizenship in 2022, the highest number since 2011 according to the Ministry of External Affairs (MEA) February 9 report to the Parliament.

In 2021, of the 1.63 lakh Indians who renounced their citizenship, nearly half, or 78,284, chose the United States, followed by 23,533 who adopted Australian citizenship, 21,597 who adopted Canadian citizenship, and 14,284 who chose the United Kingdom.

It indicates that the United States, which continues to have the highest per capita income in the world, is the top destination for Indians seeking foreign citizenship. With the likelihood of naturalization through years of employment diminishing, experts report that Indians are increasingly turning to the investment-visa program to settle permanently in the United States.

Currently, Indians residing in the United States "predominantly" make urgent inquiries regarding the EB-5 visa, but more long-term inquiries are coming from India with a time horizon of six to twelve months, according to Lohia.

What Are the Risk Factors to Consider?

According to the USCIS, EB-5 investments are required to be "at risk." However, the most significant risk factors are not related to the return on investments, but rather to whether the applicant's primary objective of permanently settling in the United States could be impeded.

The rules require high scrutiny to ensure that the applicant's investment funds in the United States were obtained through lawful means. Applicants may be denied the conditional green card if the source of their investment is unclear.

In addition, the applicant's conditional green card may be denied if the investment made under the program fails to generate at least ten long-term jobs for qualified US citizens.

The third risk factor involves the selection of a "regional center." Following the regulations governing the EB-5 program, an applicant may invest directly in a business or in a USCIS-designated regional center that pools EB-5 investments and uses them to create job-creating projects.

Experts note that one must be particularly cautious when selecting the regional center. Investing in a project that fails to generate the required number of jobs or meet USCIS standards would result in investment losses and the denial of a green card.

The CEO of CanAm Investor Services emphasized that the success of an EB-5 investment ultimately depends on proper due diligence and adherence to the program's requirements.

Note: This website's content is meant to be general; it does not constitute legal or financial advice. Only a licensed expert with a total understanding of all the information and circumstances of your specific situation can provide legal or financial advice. Before enrolling in the EB-5 program, you should contact a visa attorney with legal, immigration, and financial knowledge.