Why EB-5 Makes Sense for Many Indian Nationals

Posted on 06/28/2018 by Mark A. Ivener, A Law Corporation

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Just to give a basic sense of the difficulties Indian nationals may face in gaining permanent residence or a Green Card, here is an example of what might be experienced for an Indian national who arrives in the U.S. for college and decides that he/she wants to remain in the country permanently:

  1. After graduating from College, our example is eligible to stay in the US for practical training. This program is becoming increasingly difficult to enter into as new restrictions have been implemented.
  2. In order to work in the U.S., our example will now need to attain an H1-B visa. Should he/she only have an undergraduate degree, he/she will have a 1 in 4 chance of gaining a visa through the lottery. This figure goes up to 3 in 4 if he/she has a more advanced degree, but there are still no guarantees.
  3. Should he/she gain an H-1B visa, our example will still face a few major challenges:
    1. He/she will have to prove that the applicant is employed in a “specialty occupation”. Under new interpretations, this means that he/she must be employed in an occupation that only has one major field of study that is pertinent to it.
    2. He/she may be denied a visa solely because he/she gets a job that pays level 1 wages.
    3. Employer must provide the government with advance notification of the itinerary of where the applicant will work for the 3-year period of his/her H-1B
  4. After this, extension of the H-1B to future years is in no way guaranteed.
  5. Should our example convince employer to sponsor for a green card, this will raise a host of other issues. The most common employer programs are EB-2 and EB-3. At present, wait times for these programs are over 12 years. While waiting for their visa to process, our example cannot leave work or even get promoted to a new position without having to restart the application process.
    1. There is a possibility, currently being discussed in Washington, that the law that allows for extensions of H-1B visas during these wait times may be altered or repealed, making it difficult or impossible to guarantee permanent residence throughout the waiting period.
  6. The other common option for Indian nationals seeking permanent residence in the U.S., the EB-1 visa for people with exceptional skills. This visa program is currently backlogged to 2012, so will not allow rapid entry into the U.S.

With the above in mind, we believe that the EB-5 is a very interesting option for Indian nationals looking to obtain a Green Card. At present, there is a few year backlog on the EB-5 quota for Indian nationals, so Indian nationals are able to move through the EB-5 process with just a few year backlog waiting times (for context, the wait time for Chinese nationals is about 15 years currently).

Also, the current EB-5 investment amount, at a minimum of $500,000, is likely going to increase significantly in the near term. There have been consistent conversations in D.C. this year about increasing the minimum amount, likely to over $1 million. This change may happen as soon as this year.

Clearly, the minimum investment amount means that many people are not going to be able to afford EB-5. However, for those people who have sufficient assets or may be able to receive gifts, this may be an effective route to U.S. citizenship.

If you are interested in pursuing an EB-5 green card, please do not hesitate to contact attorney Mark Ivener.

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