The H-1B visa has been a significant avenue for Indian skilled professionals to migrate to the USA for work for many years. However, it is non-immigrant, so it can have some long-term commitments associated with it, making the process more difficult, lengthy, and sometimes emotionally exhausting to obtain permanent residency (Green Card). There are many obstacles that H-1B Visa holders face before obtaining permanent residency, such as annual caps, random lottery selection, and backlogs based on a person’s country of citizenship in the employment-based categories of EB-2 and EB-3.
In response to this uncertainty, increasing numbers of Indian professionals are choosing to use the path from H-1B to EB-5 visa. With this visa option, professionals will not depend on their employment and will have a quicker, clearer path to securing their family in the USA by developing and maintaining their own business through the EB-5 Immigrant Investor Program. To do this, an H-1B Visa holder can use the EB-5 Immigrant Investor Program to take charge of their immigration future and bypass the long lines.
Why Indian Professionals Seek Alternatives to the Traditional Green Card Queue
The current employment-based green card system poses significant challenges to Indians. The backlog of applicants due to high demand for visas combined with country-specific annual limits has created a situation where some applicants could wait up to several decades to obtain a Green Card in either EB-2 or EB-3 categories.
The H-1B visa is a dual-intent visa that allows the holder of an H-1B visa to apply for an employment-based Green Card while being sponsored by an employer through either EB2 or EB3 options. However, the H-1B visa ties the applicant to the sponsoring employer and can create uncertainty regarding job security. As a result, many applicants face the risk of losing their jobs and consequently their status in the United States. They may wait years before being able to apply for an EB-2 or EB-3 Green Card because of the backlog.
As a result of the uncertainty surrounding job security and the backlog, many H-1B visa holders are seeking ways to expedite their Green Card application process through other methods, such as the EB-5 immigrant investment program. An H-1B visa holder who converts from an H-1B visa to an EB-5 investor visa will have a more straightforward path to becoming a permanent resident and will also gain the flexibility and independence that comes with permanent residency.
Understanding the EB-5 Immigrant Investor Program
To enhance the U.S. economy, Congress established the EB-5 program to allow foreign investors to create jobs in the United States by making capital investments. Those who qualify for an EB-5 visa will have a fast track to obtaining a Green Card for themselves, their spouses, and their unmarried children under the age of 21.
Key Investment Requirements
The EB-5 program requires that an individual invest in a business located within the United States that will create or maintain a minimum of 10 full-time jobs for qualifying U.S. workers. The amount of the investment depends on the geographical location of the business:
If the business is located in a Targeted Employment Area (TEA) – which is classified as a rural area or an area identified as having high unemployment (at least 150% above the national average) – the minimum applicable investment amount is $800,000.
If the business is located outside of a TEA, then the minimum applicable investment amount is $1,050,000.
The majority of Indian professionals transitioning from the H-1B visa to the EB-5 visa are investing in a Regional Center project as it allows them to satisfy the job creation requirement through indirect and/or induced job creation as a passive partner. In addition, in most instances, this is preferable for busy professionals who want to continue their current careers while fulfilling their EB-5 visa requirements. All invested funds must be “at-risk” and lawfully sourced. This is a stringent documentation requirement.
The Strategic Advantage of EB-5 Visa for H-1B Holders
Indian professionals have a distinct advantage in applying for a green card through the EB-5 program as compared to applying through the standard employment-based process, whereby an applicant applies for a green card on the basis of having an offer of employment from a U.S. employer and being eligible for one of the employment categories.
1. Bypassing the Green Card Backlog
For Indian nationals who are in H-1B status, the most important reason to consider switching from that to EB-5 is the significantly reduced wait time associated with the EB-5 program compared to the EB-2 or EB-3 categories. For example, due to the ongoing backlog of applicants in these two categories, Indian nationals can remain stuck in that status for decades. In contrast, with the EB-5 program, the Indian national’s wait time is significantly reduced due to the preference categories, along with the availability of a set-aside for certain applications filed under the EB-5 Reform and Integrity Act of 2022. With these set-aside categories, such as Rural TEAs or Infrastructure Projects, the Indian national can find immediate availability in the visa queue, so it is possible for the Indian national in H-1B status to obtain an immigrant visa before the individual in one of the employment preference categories. Thus, the H-1B to green card via EB-5 can be considered an accelerated path to becoming a permanent resident.
2. Concurrent Filing: The Game Changer
The EB-5 Reform and Integrity Act of 2022 created a benefit for people who are already legally present in America. While this presents many opportunities and advantages based on what you qualify for within EB-5, one of the most significant benefits is something called concurrent filing.
Concurrent filing allows investors to file Form I-485 (Application to Adjust Status) at the same time they file Form I-526E (Immigrant Petition by Regional Center Investor). After submitting the I-485 application, the investor can apply for an Employment Authorization Document (EAD) and an Advance Parole (AP) travel document.
The EAD gives the investor immediate employment authorization and, therefore, no longer depends upon being sponsored by an employer to extend your H-1B visa. The AP allows for unlimited international travel without any restrictions being placed on where you can travel. This benefit alone helps greatly reduce one of the greatest disadvantages associated with H-1B visas, which is employer dependency.
The H-1B to EB-5 Visa Process: Step-by-Step
The EB-5 visa process for H-1B visa holders consists of several important phases:
Step 1: Due Diligence and Investment
The first and most important phase is to choose an EB-5 project, and make the minimum investment required ($800,000 currently for TEA). Since this is an intricate process, it is important that Indian professionals utilize licensed, experienced immigration attorneys and reputable EB-5 Regional Centers to assist them throughout the application process, which should include thorough due diligence regarding the financial and job creation capabilities of the chosen EB-5 project, and how each organisation complies with all EB-5 Program requirements.
Step 2: Source of Funds Documentation
The investor must also document the legal source of all funds being invested in the EB-5 project. This means that for Indian nationals, common sources of funds may include accumulated salary savings, proceeds from real estate sales, business profits, inheritance, or gifts. Comprehensive financial records, prior tax returns and correct compliance with Indian laws concerning foreign remittances are all needed in order to provide evidence for this requirement.
Step 3: Filing the Immigrant Petition (Form I-526E)
The attorney representing an investor files Form I-526E after the investor has committed to investing. Form I-526E proves that the investor has met all requirements regarding: the amount invested; the source of funds being legally obtained; and the job creation business plan.
Step 4: Concurrent Filing and Adjustment of Status (Form I-485)
If the investor currently holds a valid H-1B visa and there is a visa number available under the EB-5 (Employment Based) category, the investor may be able to concurrently file Form I-485, Form I-765 (Employment Authorization Document (EAD)) and Form I-131 (Advance Parole (AP)). The ability to file all three forms at the same time is one of the primary reasons that the EB-5 visa is attractive to Indian citizens holding H-1B visas because this provides immediate release from H-1B immigration restrictions.
Step 5: Conditional Permanent Residency
After the I-485 application has been approved, the investor (and any immediate family members) will be issued conditional permanent residence for up to 2 years.
Step 6: Removing Conditions
The investor must file a Form I-829 to remove the conditions within 90 days of the 2 year anniversary of when the conditional residence was granted. In this application, the investor needs to prove that he or she has sustained the full amount of his or her investment, and that he or she has created or maintained 10 full time jobs. Once filed, the investors and their families will receive permanent Green Cards.
Addressing Processing Times and Backlogs for India
Though the EB-5 program is a quicker path to a Green Card than going through the EB-2 or EB-3 backlog, the approval process does take time. Timing for approvals of I-526E petitions can be different depending on the particular petition and circumstances surrounding the investor’s case; however, the greatest advantage for Indian professionals is being able to immediately submit an I-485 via the concurrent filing option. This allows for the applicant to get their work permission and ability to travel within a few months, even if the I-526E is still being processed.
India historically has always had a large backlog in the EB-5 general category for Indian nationals. The visa set-asides created by the 2022 Reform Act provide a unique tool to help expedite the overall process when applying to become an immigrant via the EB-5 program. A benefit of the Visa Set-Asides is that they have protected status against retrogression meaning they can be “Current” on the Visa Bulletin which essentially allows concurrent filing also known as the EB-5 to H-1B visa pathway allowing for significantly shorter waiting times until obtaining a Green Card.
Conclusion: Taking Control of Your Immigration Future
While there are still many uncertainties to consider when transitioning from H-1B status to a Green Card, the EB-5 Immigrant Investor Program represents a tangible, rapid, and employer-independent alternative for Indian nationals. With an investment of qualifying capital, Indian national professionals and their immediate family members can secure a Green Card providing permanent residency status to the family and all of the rights, flexibility, and security associated with being a permanent resident of the U.S. Given the favorable timing of concurrent filings and Visa Set-Aside categories available at this time, now may be the best time for H-1B holders who meet the eligibility requirements to pursue the H-1B to EB-5 visa strategy.
Read the related blog about Green Card for H1B Visa Holders
Ready to Accelerate Your Green Card Journey?
If the lengthy waits and employer dependency of the traditional employment-based categories are no longer sustainable for you or your family, the EB-5 visa offers a powerful alternative. Don’t let your professional life in the U.S. be defined by a visa lottery or a decades-long queue. Take the next step to secure your permanent residency and explore how to strategically convert H-1B to EB-5 visa today.
Frequently Asked Questions (FAQ)
Q1: Can I be on an H-1B visa and apply for the EB-5 visa at the same time?
A: Yes. The H-1B is a “dual-intent” visa, meaning holding it allows you to pursue both temporary (nonimmigrant) and permanent (immigrant) residency simultaneously. You can file the I-526E petition for the EB-5 program while maintaining your H-1B status. This is a key advantage for Indian professionals looking for a more secure path to a Green Card.
Q2: What is “Concurrent Filing” and how does it help H-1B holders?
A: Concurrent filing is a provision that allows EB-5 investors who are already in the U.S. to file their I-485 (Adjustment of Status) petition at the same time as their I-526E petition, provided an EB-5 visa is immediately available (often the case in the set-aside visa categories). This is crucial for the EB-5 visa for Indian H-1B holders because it allows them to quickly apply for an EAD (work permit) and an AP (travel document), often within a few months. This grants them immediate job and travel flexibility, effectively breaking the H-1B’s tie to a specific employer.
Q3: What is the minimum investment amount for an EB-5 visa?
A: The minimum investment amount is currently $800,000 if the investment is made in a Targeted Employment Area (TEA) or an infrastructure project. The investment amount is $1,050,000 for projects in non-TEA areas.
Q4: How do I prove the lawful source of my EB-5 funds as an Indian professional?
A: Proving the lawful source of funds is one of the most critical steps in the EB-5 process. Acceptable sources include years of salary and bonus income (demonstrated via tax returns and wage statements), the sale of real estate or business assets, inheritance, or documented gifts. It is essential to provide a clear, traceable paper trail for the entire amount, in compliance with both U.S. and Indian regulations (like FEMA and RBI guidelines).
Q5: Will using the H-1B to green card via EB-5 path affect my spouse and children?
A: No, it benefits them significantly. The EB-5 investor’s spouse and unmarried children under the age of 21 are included in the primary investor’s I-526E petition and can also apply for Conditional Permanent Residence (Green Card). Concurrent filing allows them to receive EAD and AP documents as well, granting them the same work and travel flexibility as the principal investor.
