F1 to H1B to EB5: The need for a non-immigrant visa as a precursor to an EB5

F1 to EB5

EB5 Investor visas leads to permanent residency. It is a viable option for investors that are unable to obtain permanent residency through other means such as Employment sponsored green card (ie. PERM, National Interest Waivers, EB1 Extraordinary Ability, or EB1 International Managers). EB5 visas are generally the last option because it requires an investment of $500,000 or $1,000,000 depending on the location of the business and the creation of 10 jobs. Also, EB5 requires conditional residency for 2 years and a subsequent application to remove the conditions, whereby the investment must be maintained and proof of showing the creation of 10 full time jobs.

Parents often want their children to live their lives in the United States or obtain a U.S. citizenship after their studies while the parents retain their lives overseas. Consequently, the EB5 program has become a popular green card category for students. Unfortunately, permanent residence indicates permanent intent to live in the United States while an F1 student visa indicates an intent to live in the US only while studying. Consequently, there are contrary intents that can ultimately lead to a fraud charge by USCIS due to the issue of preconceived intent.

Maintaining your Status from F1, H1B to EB-5

Upon approval of an I-526 petition, an investor will be requested to submit their conditional residency application. The conditional residency application processing time can vary. Consequently, someone on an F1 student visa that has non-immigrant intent can run into issues with the conditional residency application, travelling outside the US, monitoring their EB5 business (ie. unauthorized employment), and maintaining the F1 student status. Going from F1 status to EB5 is no the ideal approach, but certainly plausible if planned appropriately to reduce risk.

However, going from H1B status to EB5 is a much more attractive approach. The trick is obtaining H1B status, which requires a job offer. In limited circumstances an EB5 investor’s company can petition for an H1B visa for him. In this situation, the EB5 entity would need to have a board of directors with funding from other investors, and the EB5 investor would need to be a minority shareholder. For the H1B position, the EB5 investor would need to work in a specialty occupation as opposed to being a general manager. EB5 direct investments require active participation by the investor (ie. being on the board of directors, etc). It’s important to guard against unauthorized employment in the event of active participation, as the duties of an H1B are specific to a specialty occupation. Another important point is that the EB5 investor’s investment needs to show that it is being invested into the company and will create 10 full time jobs, independent of the H1B position for the EB5 investor.

It makes no sense that an EB5 investor who is investing $500,000 or $1,000,000 that will create 10 U.S. jobs. The investor has to jump through these immigration hoops to be close to their investment or manage the EB5 investment. To avoid this gap in time between the time the EB5 investor has conditional residency and the ability to manage their investment, there should be a precursor non-immigrant visa for EB5 applicants.

The goal of EB5 investment is to create 10 full time jobs. While the statistics show that the unemployment rate fluctuates, many smart finance people believe it’s more towards 15% to 20%. Even if the unemployment rate is lower than what it is, shouldn’t we still try to lower the unemployment rate? The mindset by government should be do what we can to encourage job growth, not discourage it. The gap between EB5 conditional residency, the imminent and unavoidable EB5 retrogression that is coming for Chinese and Indian EB5 investors, the silly preconceived intent rules for EB5 investors, and the trap of unauthorized employment makes no sense. A precursor non-immigrant visa for EB5 investors would solve these problems and ultimately encourage job growth for the US economy, which is the ultimate goal for EB5 investors.

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Gerald Cipolla Esq. is a Principal Attorney of Cipolla Law Group, a Chicago immigration law firm. He is a frequent speaker and author of U.S. immigration. You can find some of this publication and media interviews below:

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