Is the EB-5 Green Card a viable choice for US Immigration?

Indian businesses, and businessmen, are ambitious and willing to look beyond national boundaries these days. The US’s EB-5 visa is an attractive residency-by-investment program tailored to attract individuals who seek such avenues for investment in that country and earn a green card in return.

Introduced by the US Congress in 1990, the EB-5 Green Card was started with the aim of drawing wealthy foreign investors and boosting America’s economy in high-unemployment areas, also known as "targeted employment areas" (TEAs). Over the past 15 years, the program has gained a lot of attention from investors. 10,000* EB-5 visas are allocated every year, and currently, only investors from mainland China have a waiting period for this visa. According to the US Department of State’s Visa Office, 47* EB-5 visas were issued to Indians in 2020-21, and 641* were issued in FY22.

How is EB-5 different from other US employment visas?

India generally places in the top source nations when considering the number of EB-5 applications to the US. But there are other types of employment visas as well.

When we think of American visas for Indians, we first think of H1B. Of late, it is probably the most well-known American visa, given the sheer number of software and IT engineers that head stateside from India. Indians accounted for 73%* of all H1-B visas given out in the US’s last fiscal year. The H1-B visa is issued to individuals in specified professional or academic fields or with special expertise and with a college degree or its equivalent in work experience. H1-Bs have a residency cap of three years. This visa also requires that an employer prove a lack of qualified U.S. applicants for the role, a stipulation that has become a bone of contention in American politics.

H2-A and H2-B visas are for temporary workers that do not extend beyond one year. H3 visas are given to people who seek training (except graduate medical school) within the US and will pursue careers outside the US. I visas are given to members of the press while L visas are given to migrants who are temporarily transferring within the same company; for example, managers who are transferred to a US location for a certain duration.
The EB-1 visa (also called the Einstein visa) is given to people with extraordinary achievements. An EB-2 visa is for applicants who are “members of the professions holding advanced degrees or for persons with exceptional ability in the arts.”* The EB-3 visa is given to skilled professionals who have a full-time job offer in the US. It is less stringent than the EB-1, hence has longer wait times.

Today, studies and research have laid out a wide range of benefits and rewards that one can obtain through the EB-5 program, as well as the criteria and requirements to be followed.

How much should one invest for an EB-5 visa?

The USCIS website states that investors must invest at least $1,050,000 into a commercial venture as a qualifying investment to be eligible for this green card program. Moreover, there is a mandate that the investment by such an investor must create or maintain at least 10 full-time jobs for Americans.

There are certain guidelines that the investor is required to adhere to to obtain the EB-5 green card. According to Ashoori Law, U.S. Immigration Lawyers and U.S. Citizenship and Immigration Services, the investors that apply for the green card:

• Must invest money in a new commercial venture established or founded after November 29, 1990.
• Must ensure that a risk exists for investment funds, and this must result in at least 10 new full-time jobs being created.
• Must invest in a profitable business such as a venture, a business enterprise, a trust, a corporation, or a partnership.

For anybody choosing to apply for the EB-5 program, understanding and being completely aware of the pros and cons of this program is a must, especially when it comes to investing a large chunk of what could possibly be the investor's life savings in an enterprise or just choosing to move to and make a life in the U.S.

What are the Benefits of an EB-5 Visa for Indians?

The EB-5 program offers a wide range of benefits to investors, the most popular of which is the offer of becoming a permanent resident in the USA, the permit to travel freely between countries, access to education, healthcare, banking, and social security perks in the U.S., and the eligibility to live in the U.S. for a long time if desired.
Some other advantages, as detailed by consulting firm Immigrant Invest, are:

1) Including the family in the Green Card application
Through this venture, the investor is given the chance to include their spouse and unmarried children (below the age of 21) when submitting their visa application. Adopted kids as well as kids from previous marriages of investors are included.

2) Living the ‘American dream’
With the perks available under the program, investors are free to build their lives in the US while benefiting from a high standard of living and great job opportunities. Moreover, they are also ensured economic and political safety and stability, access to healthcare services, and the opportunity for children to study in American institutions.

3) Free visa access to the US and other countries
With the green card, there is a golden chance for the investor to get visa-free access to the US. Additionally, it permits visa-free entry to Canada and other South American nations. Furthermore, the program also grants investors an international driving license, which permits them to travel anywhere in the US as well as visit Canada and Mexico without obtaining another license.

4) Opening a bank account
Investors are also given the chance to open bank accounts for themselves in the country and earn interest in them.

Important information about the EB-5 visa:

While informing ourselves of the benefits or advantages of the EB-5 program is essential to making a reasonable choice, staying well-read about the disadvantages of the program is also important.

1. The USCIS's (United States Citizenship and Immigration Services) approval of the EB-5 visa application can be a difficult process. There are extremely tight and narrow requirements that are to be met, and qualifying could be a challenge.

2. Any wrong move in the entire process of attaining the green card could seriously affect the candidate’s application being considered. The applicant might also be deported in the event of wrongdoing.

3. The applicant is given the responsibility of creating 10 new jobs in the U.S., along with the unspoken rule that they will bear all the risks that come with the business.

4. Because of the high initial investment needed to qualify for an EB-5 visa, this program is often referred to as the "Millionaire Visa." There is a chance that several additional expenditures could be incurred. Furthermore, it is vital to remember that there is no assurance of a profitable investment return, just as there is with any other type of investment.

Does an EB-5 visa application get rejected?
In some cases, an EB-5 application can be denied by the USCIS. Usually, the reasons for denial are:

1) The investor's source of funds is not documented sufficiently to satisfy USCIS regulations.

2) The commercial enterprise founded by the applicant in the US failed to create 10 jobs on your behalf and/or failed to comply with EB-5 regulations.

3) The applicant failed to satisfy basic residency/travel conditions.
If an application is denied, the EB-5 investor is allowed to file a legal motion requesting USCIS to reconsider its decision. The applicant then needs to furnish a thorough explanation and sufficient evidence to persuade USCIS to reassess the application*.
In some cases, the application is rejected, which is less severe than the dreaded “Case Was Denied.” Rejection means your application had errors, which can be rectified when you reapply. The USCIS will generally let you know the reason it rejected the application.
In either case, consult your immigration lawyer to figure out the correct next steps to take as a part of your process.

Summary: the EB-5 visa is great for Indian investors who want to move to the US
Studies indicate that this program is growing in popularity and could be a viable mode of migration. Here are a few reasons 2023 is a good time to apply to the EB-5 program:

1. There is no requirement for an employer's sponsorship to get in line for the U.S. green card lottery.

2. Indian citizens applying for the EB-5 don't have to worry about the notorious "waiting list."

3. The Indian government wants to increase tax collection at source (TCS) from 5% to 20% for overseas remittances sent under the LRS. Except for the costs of higher education and medical care, this will affect all transfers abroad.
The EB-5 green card program comes with its own flaws, but with the benefits that it does offer and guarantee, the debate on its viability for US migration seems to inch closer to the favorable side of the scale. Yes, there is risk in business, like any other, but for those who can weather it, this program can be a good choice.