There are a number of different paths to the U.S. with different requirements and different results. Two popular methods are via the H1-B visa and the EB-5 visa. While both of these options result in living in the United States, their requirements – and residency status – are dramatically different. Qualifying for one visa may not equal access to the other. So let’s break down how these two visas compare in both visa requirements and benefits, especially for immigrants currently in the U.S. on an H1-B who have their eye on transitioning from the H1B to EB-5 path and all its long-term benefits.
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H1B Visa: Married to Your Employer
Many people are familiar with the H1-B visa. This is a non-immigrant visa that allows American companies to employ foreign workers who live and work in the U.S. The H1-B holder must maintain employment with a sponsoring employer for the H1-B to remain valid. There are a number of requirements for both the worker and for the company. Let’s review the highlights.
Employee Requirements
For a foreign worker to even qualify for the H1-B program, he or she must have a minimum of a bachelor’s degree related to the position they are applying for. If they graduated from a non-U.S. university, the degree must be equivalent to the American bachelor’s degree. In certain cases, equivalent work experience can be used in lieu of a degree. (In general, three years of directly related work experience is equal to a year of university studies.) Some jobs require a license, such as lawyers and doctors. In these cases, the prospective worker must obtain a valid state license.
Employer and Job Requirements
The position to be filled by an H1-B holder must be in a specialty occupation. This means that the job must generally require at least a bachelor’s degree in a specific field of study. Engineering, math, and science are common fields. The position must also be an employee-employer relationship. It cannot be a contract role, 1099 position, or other non-permanent employment. The employer must have the legal right to employ, supervise, pay, and terminate employment with the worker.
There are other responsibilities the employer must have covered for the H1-B employment to be valid. They have to submit an LCA (Labor Condition Application) to the Department of Labor (DOL). This application, among other information, must include the salary and working conditions of the position and show no negative impact on current workers. The employer also must demonstrate a lack of American workers qualified to fill the position. The salary must be at least the standard market rate for the position and may not be replacing striking workers. The employer also pays a variety of fees associated with the application.
Other H1-B Basics
There’s an annual cap on H1-B visas issued each year. Currently, that maximum is 65,000 visas, but there are an additional 20,000 available for incoming workers with the equivalent of a U.S. master’s degree or above. Also, certain employers are exempt from these caps, including universities, government research organizations, and nonprofit research organizations associated with a higher learning organization. The initial period of the visa is usually up to three years, with the possibility of extensions for a total of six years. Other extensions may apply. If you’re planning to bring your spouse and children, they can enter the U.S. under an H-4 visa so long as you are legally married and the children are under the age of 21.
The End Result
H1-B visa holders are able to live and work in the United States for a period of time as long as their employment continues with the sponsoring employer. It is also possible to apply for permanent residency through employment-based immigration under an H1-B visa by your employer sponsoring you for a green card through a couple of different visas. The employer must be both willing and qualified to be a sponsor. Also, employment status is critical. For workers in industries that often include sweeping layoffs, as is often the case in the tech sector, this can create a challenge for those hoping to make their stay in the U.S. permanent. So, for some workers, an H1B to EB-5 path holds a lot of promise. So let’s now take a look at the EB-5 process.
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The EB-5 Visa: Freedom Through Investment
For the permanent U.S. resident hopeful who desires a more freedom than being tied to an employer, there is the Eb-5 visa option. The EB-5 results in permanent residency through contributing to the U.S. economy via investing in a business. While there is much that goes into this EB-5 process, we’ll cover the basics quickly here.
A Qualifying Investment
The first requirement – and for many investors the most significant – for the EB-5 visa is being able to make a sizeable financial investment. Currently, that amount is $1.05 million (or a reduced minimum of $800,000 for certain areas of interest called TEAs, or Targeted Employment Areas). Atlanta Partners Group specializes in these TEAs, especially rural projects and all their attractive EB-5 investor benefits. Some of the project funding can come from loans, provided the loans are not secured by the EB-5 project assets. Investors must be able to prove lawful source of funds, demonstrating that all investment capital was obtained through legitimate and legal means.
The business you invest in must also satisfy other criteria. It must be a new commercial enterprise (or the restructuring of an existing business, which is too complex to cover in this article). The business must also create ten full-time jobs for U.S. workers. While not a technical requirement, a practical requirement is for the business to be successful enough to pay those employees and survive long enough in an often challenging economic environment to complete the entire EB-5 process. And of course, there are several sets of paperwork and extensive documentation that will need to be submitted to the USCIS (United States Citizenship and Immigration Service).
Direct Investment vs. Regional Center
In years past, the only method to follow the EB-5 visa path to residency was for an immigrant to begin, manage, and maintain their own small business. This is referred to as direct investment, and for some experienced and entrepreneurial-minded immigrants who want to be directly involved in their business on a day-to-day basis, this is still an option. However, especially for current H1-B holders who see the benefits of transitioning from the H1-B to EB-5 path, this can be a greater challenge than gathering the investment capital.
For these immigrant investors, there is now the USCIS Regional Center program. Approved regional centers like Atlanta Partners Group (APG) are organizations that specialize in projects that are designed to meet (and exceed) the USCIS requirements for EB-5 business enterprises. In this way, investors can immediately partner with an experienced organization whose goals are directly aligned with their own. Indeed, this is why the vast majority of EB-5 visa petitions are now using regional center projects. Regional center investors do not have to meet the same requirements as direct investors, such as the direct involvement requirement. They can also use indirect employment to satisfy the ten-job requirement, unlike direct investors who must have, manage, and pay these employees directly.
H1-B or EB-5? The Choice is Yours.
For some, the H1-B visa is enough. On an H1-B, people are able to have an American work and life experience for themselves and their families, then most likely return to their home country. But for others, especially those who have already had a taste of American life and have a strong desire for their family to stay, the EB-5 visa program offers incredible value and opportunity. APG specializes in EB-5 projects that qualify for the reduced minimum of $800,000, making this an option for even more investors. If you’d like to learn more about your EB-5 project options, APG can review with you the current investment project openings we have. Let us come alongside you as you take the next steps toward your American dream.
