Immigrants under the visa programme can freely live, work and travel across the country. To be considered for the visa, a family has to invest $800,000 in a government pre-approved project, mostly a Target Employment Area or a minimum of $1,05 million to a commercial enterprise in the US
The spate of layoffs by tech giants in the US, including Twitter, Facebook and Amazon, has sent thousands of immigrants on H1-B visas frantically looking for jobs while also increasing applications for EB-5 investment visas.
As rules grant those fired from these companies and on an H1-B visa a window of 60 days to find a new job or switch to a new visa category, reports say that many, encouraged by the new reforms in the EB-5 programme, have applied for the visa.
What is an EB-5 visa?
The EB-5 programme was introduced in 1990 by the US Congress to give an additional boost to the economy by way of job creation and capital investment through foreign investors.
Immigrants under the visa programme can freely live, work and travel across the country. To be considered for the visa, a family has to invest $800,000 in a government pre-approved project, mostly a Target Employment Area (TEA) or a minimum of $1,05 million to a commercial enterprise in the US.
Once approved, the applicant, his or her spouse, and their children under 21 years of age (and unmarried) will receive green cards and the investment amount will be returned to the family after a period of five years. The visa programme is usually considered a precursor to permanent residence in the country.
EB-5 visa holders can reside anywhere in the country, find a job of their choice or establish a business in the US. They can also enjoy the international privileges of a green card including visa-free travel to several parts of the world.
Indians with an EB-5 visa will be eligible to apply for both American citizenship and Overseas Citizen of India status.
A family, however, needs to reside in the US for a minimum of two-and-a-half years in a five-year period after getting their green cards to be given US passports.
New reforms in the EB-5 visa
The programme has become more enticing for aspirants of the visa after the US government implemented the EB-5 Reforms and Integrity Act of 2022, which comes with a slew of changes.
The amended law primarily introduces two sets of changes to the EB-5 visa allocation. The first is it “repeals/replaces the two pre-existing categories of EB-5 set-aside visas (3,000 regional centres, 3,000 TEA) while introducing three new visa categories (20 per cent rural, 10 per cent high unemployment and 2 per infrastructure). Under this, the EB-5 Regional Center program has been extended for five years, until September 30, 2027.
Secondly, it has “introduced an instruction to preserve unused reserved visas from year to year within the EB-5 category (without, however, repealing or amending the parts of the existing law that define/cap the annual EB-5 limit and allocate any used EB-5 visas to other visa categories).”
The amended law demands greater compliance on part of the Regional Centres to protect the interest of investors.
The most important feature of the law is that it allows the concurrent filing of Adjustment Status (I-485).
How will it benefit other visa holders?
Those in the US on F1 or H1-B visas can now use the concurrent filing to change their visa status. Earlier applicants were required to wait for two or three years and sometimes more than that for the EB-5 application to be approved for their status to be changed.
After applying for a change in status on the EB-5 application, visa holders will be able to get an Employment Authorisation Document (EAD) and an Advance Parole or Travel Document faster than usual. An EAD helps in proving that you are eligible to work in the US and is a necessary document to possess if you have applied for a green card while living in the US and the same is pending.
An Advance Parole, on the other hand, ensures hassle-free travel in and out of the US without an immigrant or a non-immigrant visa.
The concurrent filing under the programme will benefit students to a great extent as they can live in the US even after the expiry of their F1 visa. An EAD can also help them get a job or start their own business in the US.
On the receipt of EAD, H1-B visa holders can change their jobs and even start a business or profession in the US even as they wait for their EB-5 application to be approved.
What to keep in mind while applying
While declaring their investment amount, the applicants have to show that the same comes from legal sources and will be required to provide the necessary documentation, say experts.
If the funds are being transferred from India, it is mandatory for applicants to follow the rules of Indian regulators like the Liberalised Remittance Scheme (LRS) and the Foreign Exchange Management Act (FEMA).
Before picking projects – where the proposed investment is to be made – offered by Regional Centers, the applicant will have to make a background check of the concerned Regional Centre.
It has to be ensured that the concerned Regional Centre has applied for recertification with the United States Citizenship and Immigration Services.
For an applicant to be eligible for Green Card, he or she will have to guarantee that the chosen project will create 10 jobs in the US economy within two years. The applicant is also supposed to assess the risk involved in a particular project.
Experts advise EB-5 applicants to invest in projects which have prior EB-5 experience, strong investor protection mechanisms, and a robust investor ecosystem. The investment partner should also be chosen carefully and should be one which is client-oriented and have a long-term approach.
An aspiring investor should also hire an attorney who has experience in EB-5 for Indian investors to help with the source of fund analysis and EB-5 visa application.