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The Very Questionable Alternative to the H-1 Category

The internet is full of many, many ads for the “EB-5†immigrant visa category (for conditional permanent residence and ultimately regular permanent residence) which is promoted as an alternative to the H-1 process.  Some of the “advantages“ include:  there is no lottery, no arguments about what is and is not an H-1 position, etc. 

Specifically, the ads are directed to F-1 students who have graduated and are working on OPT.  In almost all cases, these F-1 students will have to consider the H-1 process:  finding an employer that will sponsor the student/H-1, getting selected in the H-1 lottery, and getting the actual H-1 petition and application for change of status approved.  There is no question this process is frustrating and ultimately may not work for every student.  However, using “up front CPT†in place of the H-1 (which not only provides full-time employment but also strategies to obtain permanent residence through employment) is a clear alternative.   

In contrast, the EB-5 process requires an investment in a “regional center†of at least $800,000 if not much more.  The investment cannot be made in the student’s company or any company the student chooses.  The EB-5 is restricted to companies already approved by USCIS and designated a “regional centerâ€.  There are dozens and dozens of these “regional centers†throughout the US, but the ultimate issue is whether the company/regional center can remain actively doing business until the student can obtain the final green card.  That process may take 3-8 years depending on the native country’s quota.  And it is a situation where the investor has no control over or input into the business which supports the conditional and regular permanent residence.

This discussion does not begin to cover all the very difficult issues which arise in EB-5 cases (such as where the student obtains the investment amount, etc.).  But there are options to the H-1 category although the EB-5 category is really not one of them, except in very rare cases and almost never for an F-1 student.

If you have any questions, as always please email me directly: [email protected]  

David Swaim

Managing Partner
Tidwell, Swaim & Farquhar, P.C.