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Beyond the H1B: The EB-5 visa can be your gateway to the USA

The following article is an initiative of NYSA and is intended to create awareness among the users
Beyond the H1B: The EB-5 visa can be your gateway to the USA

The discourse surrounding immigration has seen a seismic shift in recent years, with the rise of nationalism, particularly in the Western world. However, even the most notoriously anti-immigrant world leaders have welcomed top-of-the-line applicants with open arms. “People have to come into our country legally, not illegally,” said US President Donald Trump. “And I want them to come in on merit.”

Merit-based immigration, facilitated by investment and entrepreneurship, was at the heart of the discussion at the CNBC-TV18 Global Investment Immigration Summit. Presented by Nysa Global, the event sought to explore the reasons behind the unprecedented growth of investment immigration as a phenomenon, and its impact on Indian individuals and businesses. Featuring representatives from the USA, Canada, Ireland, Portugal, Greece and the UK, it was a veritable fount of information for investors hoping to conquer the world.

One of the hot topic of discussion was the Employment-Based Fifth preference category or EB-5 as it is best known. Over the past couple of years, EB-5 which is quickly becoming the preferred gateway to the USA. The ambiguity surrounding the H1-B visa for foreign workers, which has conventionally been the go-to for Indians chasing the American dream, has made it imperative for them to seek out other alternatives. It’s no surprise, then, that an increasing number of people are looking into investment as a solution to their immigration woes.

To begin with EB-5 is an immigration category that has quickly captured the imagination of upwardly mobile Indians. So, what does it entail? An investment of one million US Dollars into a business or project that creates at least 10 full-time jobs forms the basis for this program. The investment must be made directly, and through funds that can be verified as being legally earned.There are some exceptions, though. Mitch Wexler, Partner at leading immigration law firm Fragomen, noted that the minimum investment threshold is lowered to $500,000 for investors pouring their money into Targeted Employment Areas (TEAs), where unemployment is high. Moreover, these regions come with the added benefit of any indirect job creation being attributed to the investor in question.

And while the road to an EB-5 is a fairly straightforward one, Wexler called it a journey that “varies with each investor”. Likening the process to snowflakes, he emphasised the importance of setting reasonable expectations, owing to the backlog in processing these applications, which can be as high as a few dozen years.

There are also a few other challenges that investors must be prepared to deal with. Most notable is the “aging out” of any dependent children, who are only eligible to be a part of the family application until the age of 21. While there are some concessions for any delay caused by the length of the process, it’s always advisable to factor in these variables before embarking on an immigration journey. Esteemed immigration lawyer Bernard Wolfsdorf highlighted a potential workaround to this problem, which involves designating any children in their mid to late teens as principal applicants.

The EB-5 program also has an annual upper limit of 700 visas per country, which further makes the case for taking prompt action. Wolfsdorf highlights the example of Vietnam, applicants from where sometimes have to wait for over 7 years before their Final Action Date (FAD). “The waiting line is chronic,” he says. “The window of opportunity is narrow.” Fast, well-thought-out action can help make your immigration as smooth as possible.

Both Wexler and Wolfsdorf noted that there are certain legislations relating to the process that need reworking. One of these is the controversial quota, which caps visas at 10,000 people, including the investors’ dependents. A pending lawsuit asks for this to be amended to 10,000 investors, which would pave the way for much more prosperity and job creation in the USA.

This is far from the only change in the works. Once the current law expires on September 30, 2019, an increase in the minimum investment amount, a change in what constitutes a TEA, more audits, and more rigorous background checks are likely to come into the picture.While this may seem intimidating at first glance, both Wolfsdorf and Wexler remain optimistic that the road to the EB-5 is a fairly smooth and rewarding one. All you need is careful planning, an early start, realistic expectations and a willingness to consult with the experts, until the American dream becomes your reality!