Washington D.C., February 8, 2018:  On-going negotiations on Capitol Hill to extend the federal budget and reform various immigration programs appear to be reaching for...

As the H-1B visa program faces future uncertainty, especially under the Trump administration, many H-1B visa holders are turning to the EB-5 Program as a shorter alternative pathway to U.S. citizenship. The H-1B visa program has faced uncertainty ever since President Trump expressed a desire for U.S. companies to hire more Americans. A bill was proposed earlier in the year that would more than double the minimum salary requirements for H-1B visa holders as an incentive for U.S. companies to hire more Americans.
What is the difference between the H-1B visa and the EB-5 visa?
The H-1B visa is a non-immigrant visa that allows U.S. companies to employ foreign workers in specialty occupations such as IT, medicine, or engineering. The EB-5 Program is an immigrant investor program, whereby foreigners can invest a minimum of $500,000 into a job-creating new commercial enterprise in exchange for a green card.
What are the advantages of EB-5 over H-1B?
  • EB-5 does not require the applicant to hold a Bachelor’s or higher degree.
  • EB-5 applicants do not have to work in specialty fields.
  • EB-5 applicant’s conditional permanent residency is not dependent upon employment. It is only dependent upon I-526 petition approval, whereas H-1B visa holders must continue working for their employer to maintain H-1B status.
  • If an H-1B applicant is terminated from their employment, they must leave the United States. USCIS may allow H-1B holders to change their status to another non-immigrant visa, but it can cause issues.
  • EB-5 can be a faster path to applying for citizenship.
  • EB-5 investors can live, work, and go to school anywhere in the U.S. They do not have to live by their investment and they do not have to be involved in the day to day management of their investment if they do not wish to.
  • An investor’s spouse and unmarried children under the age of 21 can all qualify for green cards under the EB-5 investor’s application.
  • Family members can gift an EB-5 applicant the funds required to invest in the EB-5 Program.
Due to the volatility of the H-1B Visa Program as well as the numerous advantages the EB-5 Program possesses over H-1B, many men and women, particularly from India, are looking at investing in the EB-5 Program rather than the H-1B program.
How can you get started investing in the EB-5 Program?
To get started, a potential EB-5 applicant will want to consult with an immigration attorney.

Last year, the DHS accelerated its rule making schedule to adopt proposed new regulations on the EB-5 regional center program in February of 2018. The new EB-5 regulations increase minimum investment amounts, centralize TEA designations at DHS and allow for certain EB-5 petitioners to retain their original priority date should they decide to re-file their EB-5 petition.

When an agency publishes a final rule, the rule is generally effective no less than thirty days after the date of publication in the Federal Register. If the rule is a “significant” or “major” rule, as defined by law, then the rule is required to have a 60-day delayed effective date. A “significant rule”, as defined by Executive Order 12866, is any regulatory action that is likely to result in a rule that may “have an annual effect on the economy of $100 million or more or adversely affect in a material way the economy, a sector of the economy, productivity, competition, jobs, the environment, public health or safety, or State, local, or tribal governments or communities.”

Based on the content of the new EB-5 regulation, it is likely that there will be a 60-day grace period if the final EB-5 regulation is actually published in February before the final regulation will take effect. This grace period may provide Congress with additional time to reach consensus on future reforms to the EB-5 Regional Center Program.

As negotiations on Capitol Hill continue to reach agreement on a bill to fund operations of the U.S. federal government, many wonder whether U.S. Citizenship & Immigration Services (USCIS) will shut down. USCIS continues to operate even if the other agencies of the U.S. federal government experience a shut-down. This situation occurs because USCIS is a fee-funded agency, meaning that the fees for its operations arise primarily from fees collected from applicants. 

Washington, D.C. – January 19, 2018: As negotiations on Capitol Hill continue to reach agreement on a bill to fund operations of the U.S. federal government, employers and immigrants are frequently anxious about whether U.S. Citizenship & Immigration Services (USCIS) will also shut-down.

The short answer to this concern is “no”, USCIS continues to operate even if the other agencies of the U.S. federal government experience a shut-down. This quirky situation occurs because USCIS is a fee-funded agency, meaning that the fees for its operations arise primarily from fees collected from applicants. Additionally, many functions of the U.S. Department of Homeland Security (such as U.S. Customs and Border Protection) are also considered essential government services that are required to remain operational even if there is a shut-down. So, in the past, the USCIS has actually remained open for business during a government shut-down. The U.S. Department of Labor, however, is not so lucky: it has to shutter operations for lack of funding.

Readers from abroad may ask themselves: “How many times has the U.S. federal government shut down because of disagreement over funding?”. The answer to this question would require a much longer response than available in this report.

Negotiations continue with most observers expecting an agreement to keep the U.S. federal government operating through mid-February or mid-March of 2018.

I.A. Donoso & Associates, LLC, is a law firm based in Washington, D.C., and is recognized as a leading immigration law firm with recognized expertise in visas for EB-5 investors, professionals and academics.

Congress and the White House have deadlocked on legislative changes to many immigration programs, including the EB-5 Regional Center program. However, the Department of Homeland...

January 3 | By Chidanand Rajghattal WASHINGTON: India may be looking at upwards of 500,000 of its "skilled" work force returning home from America if a proposal by the Trump administration not to extend H-1B visa of those waiting for permanent residency (Green Card) is implemented.   The Department of Homeland Security is said to be considering new regulations that would prevent H-1B visa extensions as part of President Donald Trump's "Buy American, Hire American" initiative promised during the 2016 campaign. Under current law, foreign guest workers are allowed one three-year extension of the H-1B visa of three-year validity. If at the end of those six years the guest worker has a pending Green Card (Permanent Residency) application, then there is an almost indefinite extension of the H-1B visa till such time the applicant's Green Card processing is completed. Because there is such a huge backlog of Green Card applicants, particularly for countries such as India and China, hundreds of thousands of workers from these countries spend 10-12 years in what is mirthlessly called H-1B hell or limbo. The small 'comfort' they currently have is they can remain in the US while the Green Card is being processed. The Trump administration is considering ending that concession. If an H-1B visa holder has applied for a Green Card at the end of his six-years then he or she will have to exit the United States till the processing is complete. Technically, the Trump administration is correct and well within the law to amend the rules because the H-1B was meant to address skilled worker shortage in the US, and not intended to become a route for immigration. But over the years, hundreds of thousands of skilled foreign workers, particularly Indians and Chinese have used the H-1B route to first become permanent residents (Green Card holders) and then become citizens. They include some of the most storied names in the US tech industry, including Satya Nadella and Sundar Pichai, India-born head honchos of Microsoft and Google respectively, and because they added such immense value to the US tech industry, the whole visa category has generally been looked at favorable by both the tech industry and previous administrations. However, in the run-up to the 2016 Presidential elections, nativist American tech workers who felt short-changed by the influx of foreign workers managed to convince the Trump campaign that there is no shortage of American tech workers and the H-1B inflow was part of the US tech industry's tactics to keep wages low. Although, successive administrations have fiddled with the rules to make it difficult for US companies to hire foreign workers, including hiking processing fees and minimum salaries, demand for H-1B remains unabated because the US industry says America does not produce enough STEM graduates with requisite skill sets. Changes to the current H-1B rules will affect India more than any other country. More than 50 per cent of the 85,000 H-1B visas that are currently being issued annually goes to Indian workers, which means there are an estimated 255,000 Indians with H-1B visas in the last six years alone. Tens of thousands more H-1B visa holders going back more than a decade are already awaiting Green Card processing. Of course, it is not necessary that all H-1B visa recipients are immigration aspirants or are having their Green Cards processed. Many simply go there for short term work or return after their stint. This is not the first blow dealt by the Trump administration to foreign worker inflow as part of its effort to keep US jobs for Americans. IT has already announced that it plans to roll back the H-4 EAD introduced during the Obama presidency that allowed spouses of H-1B visa holders to work in the US subject to certain conditions. It is also possible that the visa extension roll back is never implemented. It is currently at a proposal stage and there are powerful arguments against implementing it. Chief among them is that the young, foreign-born skilled workforce pays into the US tax system and enhances the country's economy. Many tech savants have warned that if the US keeps them out, then it will accrue to the benefit of their home countries; they will simply go back and start Facebooks and Ubers, something US tech mavens have warned is already happening in China.  

EB-5 PROGRAM EXTENDED WITHOUT CHANGES FOR TWO WEEKS Washington D.C., Dec. 8, 2017 - The House and Senate passed a Continuing Resolution, H.J. Res. 123 on...