Current issue:
We have seen waves of massive layoffs across the tech industry over the past two years. According to Layoffs.fyi, a website that tracks layoffs in the tech industry, there have been over 154,000 layoffs in 2023 and over 264,000 since 2022. Big names like Google, Meta, and Amazon are at the top of that list.
The situation is particularly unsettling for H-1B workers. The snowball effect of a layoff can be incredibly stressful for H-1B visa holders. Not only do they face a loss of salary, but also the ability to stay in the country.
Introduction:
Many of the H-1B visa holders we work with at InvestAmerica express very similar frustrations regarding their status, including:
Uncertainty and Insecurity: H-1B holders often face uncertainty and insecurity regarding their immigration status. They may feel stuck in their jobs or restricted in their ability to travel or work in different locations within the US. This lack of mobility can limit career opportunities and personal growth.
Dependence on Employers: H-1B holders are tied to their employers, as their visa status is employer-sponsored. This dependency can make it challenging to switch jobs or negotiate better working conditions.
Visa Renewal and Extensions: H-1B holders need to go through the visa renewal or extension process periodically, which can be time-consuming, stressful, and subject to changing immigration policies. Any delays or issues in the process can lead to legal uncertainties.
What happens once an H-1B termination takes place?
Layoffs are devastating and disruptive for anyone, but for immigrants, it adds a whole layer of distress and complexity. Once a layoff takes place, the employer is obligated to notify USCIS immediately that the position has been terminated, automatically revoking the H-1B. The revocation of the H-1B employment is automatic, and a 60-day grace period begins.
The fundamental issue to keep in mind is that once the termination occurs, the clock starts ticking. H1-B workers have a 60-day grace period in which they are still considered in status. Essentially, you have 60 days to find a new job or until the expiration of your I-94, whichever is shorter. There are always differences depending on your personal situation specific to other pending status adjustments that may be process. We recommend you consult with a licensed immigration legal professional to understand the key differences.
However, there’s a distinction between being out of status and having unlawful presence. If you accrue more than 180 days of unlawful presence, after the 60 day grace period, you will be barred from re-entering the country. During this time, it’s crucial to get things in order and potentially exit the country. If your I-94 expires, you will likely have to leave the country sooner. Exceeding these grace periods could result in a three-year ban. If you exceed one year of unlawful presence, you will be barred from re-entry for 10-years.
During this period, you need to find a new solution. This could involve finding a new employer to sponsor you. If your spouse is on H-1B, you could consider moving to H4 status as a dependent. You might also consider another visa to change status and stay in the United States. Many individuals on H-1B visas consider transitioning to a green card through the EB2 or EB3 category. However, if you examine the Visa bulletin for countries like China and India, you’ll find significant backlogs in these categories that may prove untenable.
Exploring EB-5 as an alternative has proven to be an excellent solution for the qualified investor. The EB-5 program, established in the 1990s, provides a solution by offering a pathway to permanent residency through investment. In this blog post, we will explore the EB-5 process, the significance of working with reputable investment advisors and immigration attorneys, market viability and potential returns for investors, as well as post-EB-5 life and suitable investment options.
1. The Basic Steps to transfer to an EB-5 visa for H-1B holders:
The EB-5 investment process consists of three main steps. Firstly, investors identify a suitable investment and file the Immigrant Petition (I-526E), which includes a business plan outlining the investment project and the expected job creation. The second step is the adjustment of status (I-485), where investors can change their status from an existing visa to a green card application while remaining in the United States. Previously, these two steps were taken separately, but recent changes allow concurrent filing, providing more flexibility for investors. The benefit of this approach is that you will be granted all rights associated with an Employment Authorization Document (EAD), including full travel benefits. Additionally, your children will be protected from aging out of the program due to any extended processing times. Finally, after two years of holding a conditional green card, investors must demonstrate that the investment has been maintained and has created the required jobs to obtain a permanent green card.
2. Qualifying for an EB-5 investment
To qualify as an EB-5 investor, you must meet the following requirements:
● You must be a foreign citizen and non-U.S. resident.
● You must qualify as an accredited investor.
● You must invest at least $800,000 (or $1.05 million if you are not investing in a targeted employment area) in a new commercial enterprise that will create or preserve at least 10 full-time jobs for U.S. workers.
● You must be able to demonstrate that your investment funds are legally obtained.
● You must be able to pass a background check.
3. The Importance of Reputable and Licensed Advisors:
The success of the EB-5 process greatly relies on working with reputable, experienced and licensed professionals like immigration attorneys and investment advisors. Look for professionals with a long and successful track record, have a proven history of guiding investors through all steps of the EB-5 program, looking out for their best interests and achieving a 100% approval rate for permanent green cards. They are trained to provide valuable guidance, provide diversified and well-vetted investment options, and ensure compliance with the complex requirements and regulations of the program and U.S. securities laws. Partnering with trusted professionals minimizes risks and increases the likelihood of a successful EB-5 journey.
4. Market Viability and Potential Returns for Investors:
Investors exploring the EB-5 program often face challenges in gaining a comprehensive view of the investment landscape. Historically, access to investment deals has been predominantly controlled by project sponsors, such as regional centers or developers. These sponsors typically lack the incentive or obligation to introduce investors to projects outside their purview. This limited exposure makes it difficult for investors to compare funds, assess the merits of underlying projects, and weigh all pertinent factors crucial to their decision-making process.
When considering the EB-5 program, it’s imperative for investors to meticulously evaluate the market viability of the investment project, along with a myriad of other considerations. Conducting thorough professional due diligence on the project’s fundamentals is essential, both from an immigration and financial standpoint. Only an independent registered broker-dealer, free from any conflicts of interest, is equipped to market a diverse array of investment options. Such a broker can also offer independent advice to investors regarding the benefits of cash flows and returns projected to be generated by the project.
5. Post-EB-5 Life and the Importance of Suitable Investment Options:
Once investors obtain their permanent green cards, they face the question of what to do with their capital and how to continue their investment journey in the US. It is important that investors approach post-EB-5 life cautiously and consider investment options that align with their risk tolerance and financial goals. If they began their journey with a reputable investment advisor, they could offer suitable choices for investors seeking to diversify their portfolio. Such firms will have a portfolio of alternative investment options that are aimed at providing optimal diversification. Investors should also evaluate the tax implications of their investments, especially how obtaining permanent US residency might affect their overall tax situation. It’s advisable to consult with tax professionals who are well-versed in both the US tax code and the tax regulations of their home country.
Ready to take the next step? Our team at InvestAmerica is committed to guiding you on the path to a prosperous future. By understanding your unique immigration and financial goals, we can tailor a strategy that fits your needs.
Fill out the webform below to set up a no-obligation consultation with our experienced investment professionals. Let us help you take advantage of the EB-5 program, leveraging our industry expertise and insights.
