EB-5 for H-1B Workers

Is EB-5 a Good Alternative for H-1B Workers?

Chronic instability in the tech, financial, and legal industries have sparked concern for those who rely on a job to maintain their non-immigrant status in the United States. Obtaining an EB-5 visa may be a solution for many to help themselves and their families stay in the United States without being uprooted and forced to leave. 

H-1B is one of the most common work authorization statuses in these industries, and a special provision allows those who cannot apply for Form I-485 Application to Adjust Status (AOS) because of a visa backlog in the EB-2 or EB-3 categories for their country of birth, to continue extending H-1B status for as long as there is a backlog, so long as an I-140 petition has been filed and approved on their behalf.  The extensions are for three-year increments at a time, but this does mean that the H-1B worker (typically from India or China as the backlogged country) is at the mercy of their employer and maintaining a job. 

What Happens During Layoff or Termination?

When a person who is in H-1B status is laid off, or whose employment is terminated, regardless of the reason, they typically have a 60-day grace period (or to the end of their I-94 status, whichever is sooner), to either find a new employer, or to depart the U.S.  USCIS has clarified that the 60 day grace period starts from the last date of paid employment, which would also cover those companies who have given additional paid time to their employees, even if there is no productive work.  If the H-1B worker cannot find a new employer during this time- they must depart the U.S. in 60 days or find an alternate solution. Some individuals will switch to B-2 status as a visitor to tie up their affairs, while some may switch to a dependent status if their spouses are in the US on a different status or switch back to a student status. This, of course, produces much anxiety for the H-1B worker and their family.

EB-5 as a Solution for an Unemployed H1-B Worker

It is possible for an H-1B worker to file an EB-5 petition and an AOS application within this 60-day period. Upon receipt of the applications, the H-1B worker (and any dependents included in the filing) would be able to stay in the United States. The AOS application filing also includes an application for Advance Parole (Form I-131) and application for an Employment Authorization Document (EAD, Form I-765), which, once approved, will provide for travel and work authorization. An H-1B worker does not need to anticipate a layoff or termination to file an EB-5; those from backlogged countries who know they have years to go until they can submit an AOS application can file for the EB-5 and AOS now to possibly obtain their green cards sooner.

Filing an EB-5 Petition and Maintaining H-1B Status

Of course, there are some nuances that an H-1B worker must be aware of if they decide to file an EB-5 petition with a concurrent AOS application. Once the petition is filed, and if the H-1B worker is still within their 60-day grace period and finds another employer, they can still “port” to the other employer and stay on H-1B status while the EB-5 and AOS are pending. 

However, if the 60-day grace period has already lapsed, and an EB-5 petition and AOS application has been filed, they are not able to change employers, and instead must wait for the Advance Parole and EAD to arrive. This is because the change of employer is no longer valid past the 60 days, and the H-1B worker would need to either have the EAD to work or must have the H-1B filed as a “new” petition (instead of a change of employer), and would need to leave the U.S. and come back to activate the H-1B.  The wrinkle here is that the H-1B worker may not leave the U.S. if they do not have a valid H-1B visa, or the AOS application may be deemed abandoned. In this scenario, the H-1B worker may either: 1) withdraw their AOS application, leave, and obtain a new H-1B visa stamp and return to file new AOS applications (and leave the EB-5 pending), or 2) wait for the EAD card to arrive.

If the H-1B worker has an existing H-1B visa stamp from their previous employer, then this is not an issue, and they can leave the U.S. and return to work for the new employer in H-1B status. This is because H-1B is a dual intent status that allows one to stay in H-1B status even while the AOS application is pending. 

The above article is intended for informational purposes only and is not based upon any specific set of facts. Anyone with specific questions or issues concerning EB-5 or H1-B should consult an immigration attorney.

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