We wrote in 2017 that many Indian citizens with the goal of relocating to the U.S. are faced with procedural hurdles that increase the difficultly of living and working in the U.S. Students applying for H-1B visas are subject to an H-1B lottery with poor odds, forcing them to return home at the end of their Optional Practical Training period. Those lucky enough to make it through the lottery and have an employer willing to sponsor them for a green card face massive backlogs in the EB-2 and EB-3 categories creating a decade long wait. The EB-5 program presents a number of solutions to these issues.
The EB-5 program offers permanent residency to foreign nationals who invest at least $500,000 into a U.S. business that creates 10 full-time jobs for American workers. The investor’s spouse and unmarried children under 21 years of age are also eligible to receive green cards through the same investment. Each investor must prove that the funds used to invest in the EB-5 project originated from a lawful source.
Immigrating to the U.S. became much more difficult in 2017, with many more restrictions expected in 2018. President Trump has already delivered on many of his campaign promises to curb immigration. Here are five updated reasons why EB-5 may be an especially attractive option for Indian citizens right now.
1. No EB-5 backlog for persons chargeable to the Indian quota – yet. Even with current processing times, Indian citizens can expect to have a green card in approximately 2 years, which is significantly shorter than the EB-2 or EB-3 preference categories. However, with the significant increase in Indian EB-5 filings, it is likely there will be a backlog in FY2019. Investors stuck in a backlog must keep their EB-5 capital invested throughout and may see their derivative children age out.
2. Avoid the H-1B visa. The Trump administration has already begun restricting the H-1B program through policy memoranda and executive orders. Put simply, obtaining an H-1B visa has never been more difficult and 2018 looks to add even higher hurdles. Spouses on H-4 visas who have been issued work authorization will likely see that benefit eliminated as well. Permanent residents through EB-5 do not need employer sponsorship, so they are more attractive to U.S. employers and enjoy greater freedom of career movement.
3. Avoid AC21 dependency. Hundreds of thousands of H-1B workers stuck in the EB-2 or EB-3 backlogs who reached a specific step in the green card process are allowed to extend their status past the 6 year limit thanks to AC21. In an effort to open tech jobs to U.S. workers, DHS is considering new regulations that would eliminate this AC21 benefit, forcing as many as 750,000 Indian H-1B visa holders to return home. Ironically, eligibility for AC21 requires an approved PERM labor certification from the Department of Labor – proof that the foreign worker is NOT displacing a U.S. worker. This would be catastrophic.
4. In-state tuition. As permanent residents, many students are eligible for in-state tuition at public universities. In-state tuition rates are often significantly cheaper than the full tuition rate normally charged to foreign nationals.
5. The EB-5 Regional Center program is set to expire on January 19, 2018. Although we expect the Regional Center program to be reauthorized again as it has since 1990, both Congress and DHS have proposed a number of changes to the program. Legislative proposals would raise the minimum investment amount to $925,000 but DHS regulations would raise the minimum investment amount to $1.35 million. Without legislation, the proposed regulations are moving forward, with enactment set for as early as February 2018. Therefore, it may be more expensive to apply through the EB-5 program in the near future.
Given the unique immigration challenges many Indian citizens face, the EB-5 program offers a unique opportunity that avoids many challenges of employer sponsorship. However, with significant immigration changes on the horizon, Indian citizens should seriously consider EB-5 before it becomes more expensive and subject to a visa backlog.