It is unfortunate when someone loses their job, but for companies and individuals, a layoff becomes more complicated when the employee is an H-1B or L-1 visa holder.
H-1B workers benefit from the fact that they have already been counted against the annual H-1B quota, so it is somewhat easier for another employer to sponsor them. Employees who hold other kinds of immigration status, like an L-1 intracompany transfer visa, often have a more difficult time addressing their immigration situation than someone who has H-1B status because it is a bit easier for another employer to file a petition for them in a short amount of time.
A person in H-1B or L-1 status who has been laid-off has a number of alternatives:
- Leave the United States immediately – Very few people are interested in taking this option. Many H-1B and L-1 visa holders have developed their lives in the United States and are interested in finding other work and continuing to remain in the United States;
- Change status – Within the 60 days grace period a person who is laid-off may file an application to change to B-2 (visitor or tourist) status. Our firm does not generally recommend this for these reasons: 1) within I-94 validity the person has 60 days to find new employment exists for several months it is better to be in the US with the longer than 6 months validity a change of status will provide, 2) an employer may file a change of employer petition for a person
within H-1B I-94 validity and the person may begin employment upon USCIS receipt of the change of employer petition, 3) a person granted B-2 status cannot be petitioned by an employer for a change of employer petition and cannot begin H-1B employment until an H-1B change of status petition is approved, 4) to be granted B2 status the person in H-1B or L-1 status must convince the Immigration Service that s/he is merely here visiting, vacationing or doing other things not related to business or employment. Since, in actuality, most people who have been laid-off are looking for another job, a question as to their truthfulness could arise;
- Remain in the United States and look for a job – most people choose this alternative. Keeping in mind that the H-1B person is generally out of status after 60 days, but in a period of authorized stay within the validity of the I-94 and a new H-1B employer may file a change of employer petition for the H-1B within the validity of that I-94 and the H-1B may begin employment with the new employer upon USCIS receipt of the change of employer petition, and finally, keeping
in mind the 180-day penalties mentioned above, most people have an adequate amount of time to find another job, and file for a new H-1.
- Get a USA EB5 Visa – The EB-5 Visa is a residency-by-investment program which requires a financial commitment of at least USD 800,000. This grants you and your immediate family members a USA Greencard and a pathway to USA citizenship.
We generally recommend this route as with the massive tech layoffs, even your next job is not guaranteed to last.
So, how is the USA EB5 Visa better ?
1. Route to a Permanent Green Card
The H-1B visa allows the holder to be admitted into the United States for a period of up to three years, with an extension that cannot go beyond a total of six years generally. In contrast, the EB-5 visa is an investor visa with a direct path to permanent residency. EB-5 applicants may obtain their
two-year conditional green card soon after their I-526 application is approved (subject to any country-specific backlogs). After a two-year period, they can apply to get the conditions removed to obtain permanent resident status. Depending on the investor’s country of origin, the wait periods to obtain an EB-5 visa vary but generally, the EB-5 visa is one of the fastest and easiest ways to obtain permanent U.S. residency.
2. No Sponsorship Required
One of the major hurdles for foreign professionals is finding an employer who is willing to sponsor their H-1B or L-1 visa. But even when this hurdle is overcome, some H-1B or L-1 holders end up in a job they don’t enjoy.
And due to the sponsorship dependency of the H-1B visa and L-1 Visa, they may not be able to advance their careers and increase their pay since
they cannot freely move to a new job and company. The EB-5 visa, in comparison, has no employer sponsorship requirement and does not depend on language proficiency, business management experience or proof of advanced educational degree. The EB-5 visa allows its holder to work for any employer they choose, switch employers when they choose and even start their own business or move their existing business to the U.S.
3. Live, Work or Study in Any State
Another important reason to consider switching your H-1B or L-1 to EB-5 is that H-1B and L-1 visa holders are restricted to working, and thus living, where their employer-sponsor requires. Conversely, EB-5 visa holders are free to choose where they want to live, work and study. And since an EB-5 visa is granted to the investor, the investor’s spouse and all unmarried children under the age of 21, these freedoms apply to everyone. With an EB-5 visa, the investor, spouse, and children can work and study wherever they like. They can build their career in the United States and obtain as many advanced degrees as they like. No sponsorship is required for anyone.
4. Increase in H-1B Denials
According to the latest government data, there has been a significant increase in H-1B denials by USCIS. Denial rates for initial employment have risen from 6 percent in 2015 to 24 percent through the third quarter of 2019. Along with this uncertainty, the H-1B annual cap of 65,000 visas was reached within five days during the years 2014 through 2020. For comparison, during 2012 it took more than 200 days to reach the quota.
With demand increasing and availability decreasing, it is clearly getting harder to obtain or renew an H-1B visa. However, there are 10,000 EB-5 investor visas available annually and the EB-5 program does not have a lottery system. Any foreign investor who can invest a minimum of $800,000 USD of legally sourced funds in A U.S.-based business is eligible to apply. And this single investment amount provides permanent green cards for the investor, spouse, and all unmarried children under age 21.
5. EB-5 Return on Investment
Another difference between H-1B / L-1 vs. EB-5 is that EB-5 is an investor visa. And as such, the investor is required to invest at least $800,000 into a
U.S business and is eligible to receive back that investment along with a return. The EB-5 investor visa program is administered by the United States Citizenship and Immigration Services (USCIS) and was implemented by Congress in the early 1990s as a means to stimulate the
U.S. economy through foreign investment and to create jobs for American workers. When investing in a U.S. commercial real estate project, the program is structured so that the investor receives back their investment. But earning a reasonable return on investment requires working with a seasoned real estate investment manager and experienced EB-5 Regional Center. “Investors need to research their investment partner and choose one that has expertise in real estate investing and a track record of success,” said Marquard. “And look for a partner that offers investor assistance with filing the petitions and other major steps of the process.”
On March 15, 2022, President Biden signed the long-awaited EB-5 reform measures into law as part of an omnibus spending package. EB-5 Reform and Integrity Act of 2022 allow petitioners to file their I-526 and I-485 petition for adjustment of status simultaneously. Previously, investors had to wait for I-526 approval before applying to change their position. The ability to file both petitions concurrently allows confident investors to enjoy significant Green Card benefits before actual Green Card approval.
Concurrent filing is beneficial because it allows petitioners to remove the restrictions with H-1B, E-2, and F-1 visas. When an investor files for adjustment of status, they can apply for an Employment Authorization Document (EAD), also known as a work permit. Form I-766 allows an investor to legally apply for any job available — unlike an H-1B visa, which is directed towards a specific employer. The concurrent filing also provides for the application of Advance Parole, which allows an investor to re-enter the United States after leaving without an immigrant or non-immigrant visa.
Concurrent filing will enable investors to freely live, work, and study in the United States while their I-526 petition is being processed. While having the option to file for concurrent AOS is an excellent option for an EB-5 applicant, there are essential factors to consider when you and your immigration attorney analyze your specific case and needs.
Can I make a partial payment of my $800,000 investment to get started?
USCIS permits a ramping up period of the investment. This means the entire investment amount is not required at the time of applying for the EB-5 visa.
- The EB-5 investor does need to demonstrate the availability of funds as well as a commitment to invest the full investment amount on a determinate schedule.
EB5 Source of Funds: 5 Valid Ways to Fund Your EB5 Investment
In addition to showing how your investment funds were obtained, you must also trace the path of the funds took from the time they are earned until they are deposited into the escrow account or EB5 company’s business bank account. This is referred to as the EB5 path of funds and is commonly overlooked.
1. Earnings from Employment
- One of the most common ways for an EB5 investor to fund an EB5 investment is through lawful employment earnings
- To properly document employment earnings, a prospective EB5 investor should be prepared to provide multiple years of tax returns.
- The number of years of tax returns you should include will depend on your annual earnings. For example, if your earnings for the previous year are $1,000,000, this alone may be enough to establish that your EB5 investment is coming from that year’s earnings alone. However, if your annual earnings are $200,000, you will have to include multiple years’ worth of tax returns to demonstrate that the EB5 investment is coming from accumulated earnings over a span of time.
- Other documents you may need to include are pay-stubs and a letter from your employer verifying your job duties and
2. Proceeds from the Sale of a Property
- Another very common source of EB5 investment funds is capital obtained through selling a Property
- If you are planning to use proceeds from the sale of a property, it is important that you keep a copy of the purchase and sale agreement.
- You will also need to provide bank statements evidencing the transfer of the funds from the buyers account into your account.
- Another very important point is that USCIS will want to see evidence of how you earned the funds to purchase the property.
- USCIS wants proof that the property was originally purchased with lawfully obtained funds.
- For example, if the property was purchased with accumulated employment earnings, USCIS will want evidence such as bank statements and tax returns reflecting the employment earnings.
- If proof of the underlying purchase funds are unavailable, you should be prepared to provide a detailed statement explaining why the documentation is unavailable.
3. Gift from an Individual
- Funds that are gifted from another person are another very common way for an EB5 investor to fund their EB5 investment.
- If you will use gifted funds as the basis of your EB5 investment, you should include a signed declaration from the party gifting the funds. The statement should indicate that there is no expectation for the beneficiary of the gift to repay the funds.
- You will also need to carefully document how the gifting party earned the funds that they are gifting. For example, if the funds were originally earned through employment income, you should include the gifting party’s tax returns for several years.
- You should also include detailed information on the gifting party’s background (including a resume and employment verification letters)
- There are 2 types of loans that can qualify as a valid source of EB5 funds: A loan issued by an institutional lender; A loan issued by an individual.
- Important: The entire loan amount should be secured by your personal An example would be if you own a home. The loan can be secured by the the home.
- The loan cannot be secured by the assets of the EB5 business nor can the loan be unsecured. While there are mixed opinions about unsecured loans for EB5, it is best practice to avoid unsecured loans.
- If you are receiving the loan from an individual, you should be careful to clearly document how the individual obtained the funds that they are lending you. You can document this through tax returns, declarations, and other like evidence.
- Another common source of EB5 investment funds is through inheritance.
- One of the difficulties with using inherited funds is that the inheritance may have been received several years prior to applying for the EB5 visa.
- In these situations, it is highly important to provide evidence demonstrating the relationship between the parties.
- When possible, the will, probate court documents, bank statements, and other direct evidence should be provided to prove the source of the funds.
- When direct evidence is unavailable, detailed declarations should be included from individuals with personal knowledge of the Such individuals include the probate lawyer, the EB5 investor, and family members of the devisor.
What is an EB-5 Loan?
An EB-5 loan is an unsecured personal loan for the purposes of investing in an EB-5 project.
- EB-5 Loans can be obtained for amounts ranging from $50,000 to $300,000.
- EB-5 Loans typically have a fixed term, a fixed interest rate, and a regular monthly payment schedule.
- Collateral is usually not required, and EB-5 loans typically have lower interest rates than most credit cards.
EB-5 loans help investors file more quickly, free up illiquid capital, or deal with unforeseen circumstances.
H-1B / L-1 vs. EB-5
Overall, the differences between H-1B / L-1 vs. EB-5 are significant in terms of how they impact the visa holder’s life and future. While the H-1B and L-1 visa can provide a short-term solution for legal work status in the U.S., it provides few opportunities for longevity. If you already live in the United States on an H-1B visa or L-1 and would like to take control of your destiny, then you may want to learn more about obtaining a permanent EB-5 visa for you and your family. Applying for an EB-5 visa can be done during the H-1B period, and the opportunities afforded by permanent residency are endless. So what are you waiting for ?
Contact us by filling out the form here to get started on your route to permanent residency in the USA.