For H-1B visa holders, transitioning to an EB-5 visa can be an attractive option to secure permanent residency. This path eliminates the need for employer sponsorship and can bypass the lengthy visa bulletin backlogs typically encountered when needing to file an I-485 after I-140 approval.
Maintaining H-1B Status
If an EB-5 applicant is from a country that is current on the visa bulletin, they can concurrently file their I-526 or I-526E with an I-485, I-131 for a travel document, and I-765 for employment authorization. However, if the applicant is on H-1B, they are not required to use their EAD related to the EB-5 petition when it arrives.
It is often recommended that H-1B holders maintain their status while their EB-5 application is pending. This means continuing to work for their H-1B employer until the I-526 or I-526E is approved. The H-1B visa allows for dual intent, meaning applicants can pursue permanent residency through EB-5, for example, without jeopardizing their H-1B status. Once the I-526 or I-526E is approved, the H-1B holder can utilize the EAD from the EB-5 petition, which provides more job flexibility because no employment sponsor is needed.
Nonetheless, it is strongly recommended that any H-1B holder considering an EB-5 visa consult with an experienced EB-5 attorney to explore the options and strategies that best align with their individual circumstances.
Managing a Business through Direct Investment
H-1B holders do not need to be managers in the business they invest in. There are various ways to structure such investments, including becoming a silent partner with a U.S. citizen partner who can manage the business. Notably, H-1B holders face significant restrictions in directly managing businesses where they’ve made investments due to visa constraints, confining their work to their sponsoring employer only. This limitation prevents them from actively participating in the day-to-day management or operations of an EB-5 business.
Other practical solutions include being a dependent on an EB-5 application rather than the investor. For instance, if the H-1B is married and their spouse has an H-4 EAD, the spouse can be the principal EB-5 applicant and investor, while the H-1B holder is listed as a dependent in the filing. This approach also allows the couple to meet the EB-5 program requirements without violating H-1B employment restrictions.
It is advisable to consult with a knowledgeable EB-5 deal attorney to finalize the investment’s structure and ensure compliance with both EB-5 and H-1B visa requirements.
By planning carefully, H-1B holders can maximize their chances of a smooth transition to an EB-5 visa. If you have any questions related to transitioning from an H-1B to an EB-5 visa, please email us at rpatel@patellegal.com and jtrevino@patellegal.com.