What H-1B fees increase means for Indians hoping to work in the US, why EB-5 visa is more secure

While H-1B has traditionally been the visa of choice among Indians seeking to work and live in the United States, a series of events unfolding over the last year have quickly changed those norms. From October 2020 to September 2021, the Indian workforce secured an impressive 74% of the over 407,000 H-1B visas issued. But many have been impacted by large-scale tech layoffs because roughly one-quarter of all foreign-born employees are in STEM fields of technology and science. Due to its non-immigrant, short-term visa designation, the H1-B visa program requires immigrants to find a new US employer sponsor within 60 days of termination from their job, or risk deportation.

In addition to the workforce churnings among U.S.-based companies, recent developments in availability and costs show how the H-1B visa program itself continues to dimmish as the go-to option for Indians to acquire green card status, and why H-1B visa holders are looking for a safer and long-term haven with a different type of visa.

Availability:

• With tens of thousands of more qualified workers seeking employment than there are visas available, the USCIS is once again randomly selecting H-1B applications through a lottery as the annual cap for FY 2024 of 85,000 H-1B visas (65k for undergraduate degree applications; 20k for advanced degree applicants) has already been reached.

• Based on the independent calculations, the overall 2024 H-1B visa lottery odds were around 10% this year, meaning 1 in 10 submissions being selected. The odds of lottery selection have been decreasing year after year.

Costs

• Pre-registration fees for the H-1B category have been proposed to surge – from $10 to $215 – representing a 2,050% increase.

• H-1B visa applicants are also facing higher processing fees for consular services, which took effect on May 30. 

• Filing fees are also costly for employer sponsors. Under newly proposed rules, H-1B application fees paid by employers would rise from $460 to $780. Many Indian IT companies have a substantial number of employees on H-1B or L-1 visas, and the new rule could require these companies to allocate an additional $4,000-5,000 for each visa extension. These mounting expenses could have a profound impact on the recruitment strategies and budgets of U.S.-based employers, potentially leading to increased hiring costs and affecting their ability to attract international talent.

Taking all these changes into account, the EB-5 “immigration-by-investment” visa is gaining attention as an alternative form of visa for immigrants.

EB-5 is a direct path to a U.S. green card without many of the limitations, exclusions and restrictions of H-1B and other non-immigrant visas. This USCIS-administered program allows investors and their immediate family members (spouse and unmarried children under the age of 21) to obtain permanent U.S. residence through a one-time investment. That investment must be made in a project that creates 10 or more permanent jobs, and capital is repaid back to the investor following completion of the qualifying project. Under EB-5:

• There’s no English language requirement.
• No business background requirement.
• Green card holders have the flexibility to arrange travel outside the United States.
• The investors’ children can attend colleges and universities in the United States at the same tuition rates as US residents.
• Investors and their immediate family members can apply to become US citizens after holding green cards for 5 years.
• If investing in rural projects, EB-5 investors are eligible for priority visa processing.
• If investing in a Targeted Employment Areas, the minimum investment amount is reduced to $800,000 as opposed to $1,050,000.

For Indians lawfully in the US on another visa, such as H-1B, there’s more good news. Recent immigration EB-5 reforms allow immigrants to concurrently file for an adjustment of their status while still in the US, and recent changes to the Immigration Nationality Act can extend the 60-day grace period for re-employment, providing H-1B visa holders a cushion of additional time to consider their EB-5 visa options.  The demand for EB-5 visas increased threefold in 2022 over the previous year and Indians changed their visa status to EB-5 at double the rate in 2022 versus 2021.