EB-5 for Students
With many universities and colleges getting set to start a new school year in a month, many international students on an F-1 visa may want to start considering post graduate options if they would like to remain in the United States. For many students on an F-1 visa, the EB-5 investor program may offer a path forward.
Traditionally, the H-1B visa has been the most common route for post graduate students seeking to remain in the country. This option, however, can have its drawbacks.
F-1 Status Complexities
F-1 students who are graduating, or those who are in the middle of their F-1 OPT/STEM OPT work authorization, rely on having a job to stay in the United States. F-1 students working pursuant to OPT (Optional Practical Training) are given only 90 days of unemployment before they lose their work authorization, and thus need to leave the United States within 60 days (grace period), and those working pursuant to their STEM OPT extension have 150 days. In addition, not only do F-1 students have a limited number of days allowed for unemployment, but they only have one chance annually to make it to the H-1B lottery that will allow them to stay in the United States.
This means that not only do F-1 students have the stress of 1) being picked in the H-1B lottery; but also 2) must have a job to maintain both their F-1 working status that will hopefully transition to H-1B status if they were to be picked in the H-1B lottery. The H-1B lottery, in years past, has been fraught with concern because the chances of being selected are very low. There are 85,000 lottery slots annually, with 20,000 of those spots reserved for those with a U.S. master’s degree. For Fiscal Year 2023, there were 483,927 registrations, and 127,600 selections. This year (Fiscal Year 2024), that number jumped drastically to 780,884 registrations for 110,791 selections. Note that the selection number is greater than the 85,000 number because USCIS anticipates there will be those who do not file H-1B petitions, those who will withdraw, and those whose petitions may be denied.
EB-5 as a Solution
If an F-1 student is interested in staying in the U.S. and has the ability to make an EB-5 application, they should do so as early as possible, even before they graduate. There are manyadvantages to starting the EB-5 process early. The ability to concurrently file means that the I-485 Adjustment of Status Application (AOS) can be filed at the same time as the I-526 petition. This also means that Form I-131 Application for Advance Parole and Form I-765 Application for Work Authorization can be applied for at the same time, thus giving the F-1 student a travel document and an Employment Authorization Document (EAD) card that will give them the freedom to travel and work without worrying about the prospect of unemployment in the midst of a shaky job market. Even if the F-1 student cannot find employment, or is laid off from a job, having the I-485 application filed means that they can stay in the U.S., and having an EAD means they can work for any employer without any limitation. An F-1 student working pursuant to OPT or STEM OPT must work within their field of study.
The only potential drawback of having this application filed so early is that the F-1 student will not be able travel outside the U.S. until the Advance Parole is issued and in hand. Once the student receives approval of the I-485 application when the I-526 petition is approved, they can continue on their studies as a conditional green card holder and will no longer be in F-1 status. This is why the filing of the EB-5 petition, along with the I-485 application, should be timed around when a student does not have travel and will not need to leave the U.S.
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.
