In the ever-evolving U.S. immigration landscape, the EB-5 program is emerging as a viable and secure alternative for H-1B visa holders, students, and professionals seeking long-term residency in the United States. Recently, CanAm Investor Services CEO Pete Calabrese sat down with Nicolai Hinrichsen, Managing Partner, Asia Region, at Miller Mayer, to discuss the challenges of the H-1B visa process and how the EB-5 pathway offers a compelling alternative for those seeking greater stability and flexibility.
The Challenges of the H-1B Pathway
The H-1B visa has long been considered the “workhorse” of non-immigrant visas, allowing U.S. employers to hire individuals in specialty occupations such as finance, healthcare, IT, and law. However, as Hinrichsen pointed out, the program comes with inherent limitations.
“The biggest challenge is the number of H-1B visas available,” he explained. “Every year, there are only 85,000 visas, yet last year, we had about 442,000 applicants. The year before that, it was 758,000. The selection process is a lottery, making the chances of approval increasingly slim.”
Beyond the lottery system, additional obstacles exist. Employers must be willing to sponsor applicants, meet prevailing wage requirements, and navigate an increasingly scrutinized application process. Hinrichsen noted that during the previous Trump administration, H-1B applications faced a “frontal assault” with increased requests for evidence (RFEs) and higher denial rates. If Trump were to return to office, similar restrictive measures could be reinstated.
Moreover, H-1B holders face continued uncertainty, even after securing a visa. Economic downturns, layoffs, and changes in company policies can jeopardize their ability to stay in the U.S. “If you lose your job, you have only 60 days to find new employment, or you risk falling out of status,” Hinrichsen warned. “The psychological impact of this uncertainty is enormous, particularly for individuals who have been in the U.S. for years and built their lives here.”
EB-5: A Stable Alternative
The EB-5 program provides a pathway to U.S. permanent residency through investment. Applicants must invest $800,000 in a qualified project that creates at least ten full-time jobs for U.S. workers. Thanks to the EB-5 Reform and Integrity Act of 2022 (RIA), the program has become even more attractive for H-1B holders and international students.
One of the most significant changes introduced by the RIA is concurrent filing. “Concurrent filing allows applicants to file for adjustment of status (I-485) at the same time as their EB-5 petition (I-526E),” Hinrichsen explained. “This means they can obtain work and travel authorization within about three months, providing an independent pathway to stay and work in the U.S. without relying on an employer-sponsored visa.”
The Strategic Advantage of Concurrent Filing
For H-1B holders and F-1 students, concurrent filing offers significant advantages. The ability to obtain an Employment Authorization Document (EAD) and advance parole for travel ensures greater mobility and security.
“Many applicants are looking for flexibility,” Calabrese noted. “With an EAD, individuals can change employers without the constraints of H-1B sponsorship. They can even start their own businesses. The work and travel benefits are a game-changer.”
However, Hinrichsen cautioned that applicants must be strategic in how they use these benefits. “Some individuals may choose to maintain their H-1B status while holding the EAD as a backup. The approach depends on each person’s circumstances, and consulting an experienced immigration attorney is crucial.”
Watch Now: From F-1 to Green Card: Navigating the Path to Permanent Residency
The Closing Window of Opportunity
While the EB-5 program offers an attractive alternative, the opportunity for concurrent filing may not last indefinitely. The availability of EB-5 visas depends on visa bulletin movement, and backlogs could soon develop.
“This is a closing opportunity,” Hinrichsen emphasized. “Right now, the new set-aside visa categories—rural, high unemployment, and infrastructure—are current, allowing concurrent filing. However, we expect retrogression to occur, particularly for Chinese and Indian investors. If a visa backlog develops, applicants will no longer be able to concurrently file and must wait for their priority date to become current before filing for adjustment of status.”
Given these dynamics, Hinrichsen and Calabrese stressed the importance of acting quickly. “I’ve never had a client tell me they wish they had waited longer to invest in EB-5,” Hinrichsen remarked. “The sooner you establish a priority date, the better positioned you’ll be.”
Navigating the EB-5 Process
For those considering EB-5, both experts agreed that careful planning is essential. Key steps include:
- Engage an Experienced Immigration Attorney: “The source of funds requirement is one of the most critical aspects of an EB-5 petition,” Hinrichsen explained. “Your investment must come from a lawful, traceable source. This can include personal savings, gifts from family members, or even loans, but proving the legitimacy of those funds is key.”
- Choose a Reputable Regional Center: Not all EB-5 projects are created equal. Investors should seek out regional centers with a strong track record of approvals and successful project completions. “A good regional center ensures that your investment is managed prudently and that the job creation requirements are met,” Calabrese noted.
- Understand the Investment Timeline: EB-5 investments are at-risk investments, and funds must remain invested for a specified period. “This is a long-term commitment, and applicants should be comfortable with the timeline,” Calabrese advised.
Will the EB-5 Program Change Under a New Administration?
A common concern among potential EB-5 investors is whether the program could face changes under a new administration. Hinrichsen provided reassurance, stating, “The EB-5 program is generally bipartisan. It was extended through September 2027 under the RIA, and historically, it has not been a target for restrictive immigration policies.”
Calabrese added that EB-5 aligns with key policy priorities, such as job creation and economic growth. “The program funds infrastructure and real estate development, benefiting communities across the U.S. It’s an economic stimulus initiative as much as it is an immigration program.”
Read More: Navigating EB-5 Amid Political Change: How Recent Elections Could Shape the Future of Investment Immigration
Final Thoughts
For individuals navigating the uncertainties of the H-1B process, EB-5 offers a compelling alternative. With the ability to concurrently file, obtain work and travel authorization, and secure permanent residency, the program provides a level of stability and flexibility unmatched by traditional employment-based visas.
However, given the likelihood of visa backlogs, those considering EB-5 should act swiftly. “If EB-5 is the right pathway for you, don’t wait,” Hinrichsen advised. “The opportunity to concurrently file may not be available indefinitely.”
Calabrese echoed this sentiment, encouraging interested investors to seek professional guidance. “CanAm is here to help navigate this process, and working with an experienced immigration attorney like Nicolai is crucial. This is a significant decision, but for many, it’s the best pathway forward to securing their future in the United States.”
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