India: Sleeping EB-5 Giant?

During my first private client trip to India, the people’s friendliness, hospitality, ingenuity, and ambition left a lasting impression upon me. It is no wonder that India, with the world’s second largest population at 1.33 billion, also has one of the fastest growing economies in the world. In 2015, the Indian government reported that the country’s Gross Domestic Product (GDP) grew at an average rate of 7.5%, thereby even surpassing China’s reported 6.9% GDP growth. The International Monetary Fund (IMF) estimates that India’s GDP will continue to grow at the rate of 7.5% over the next two years. As India’s economy expands and creates a larger middle class, many Indian nationals are also looking outward for international economic opportunities.

The United States, in particular, has always been a popular destination for many Indian nationals given America’s common language, excellent education system, and rewarding employment prospects. Many Indian nationals desire to come and to remain in the United States to study, to work, to expand their existing businesses and/or, to make the United States their permanent home. However, the path to obtain a green card through employer sponsorship is often a long and difficult journey for many Indian nationals given the lack of H-1B visa numbers and long backlogs in the EB-2 and EB-3 preference categories because of per country limitations. Therefore, there was a heightened interested in the EB-5 Immigrant Investor Program during this visit, as the fifth preference category (EB-5) is now a faster and easier alternative to obtaining a green card for many middle class Indian nationals who are able to make the requisite financial investment but do not want the long backlogs or uncertainty of waiting for their selection in the annual H-1B lottery.

Hurdles in obtaining green card through F-1 and H-1B visas

The allure of economic opportunity in the United States continues to draw many Indian nationals to the United States who seek to study, work and/or permanently live here. This was evident to immigration observers when large volumes of Indian foreign nationals applied for H-1B professional visas but were not selected in the annual lottery given the tremendous demand. Unfortunately, the path for F-1 students to obtain an H-1B visa and eventual green card through an employer sponsor is not so straightforward or easy. Once an Indian national obtains an F-1 student visa, completes his or her studies, and graduates from a U.S. university, he or she will be competing with other foreign nationals to obtain sponsorship for an H-1B employment visa from a prospective U.S. employer.

Competition is fierce, and assuming that the Indian national is fortunate enough to find an employer who is willing to sponsor him or her, there is no guarantee that the Indian national will be able to obtain the H-1B employment visa because the demand for H-1B visas almost always exceeds the supply. Because of the high H-1B demand, applicants are selected through a random computer-generated lottery process. The number of H-1B visas available to foreign nationals with a Bachelor’s degree from a U.S. university or foreign equivalent is capped at 65,000 visas and is capped at 20,000 visas for those with a Master’s degree or higher. In 2016, over 236,000 foreign nationals applied for an H-1B visa which was approximately 3,000 more applicants than in 2015, and significantly more than 2014 which had approximately 172,500 applicants.

For those lucky enough to have been selected through the H-1B lottery, the H-1B visa is still a nonimmigrant visa, which does not lead to a green card. In order to obtain a green card through employment, the Indian national must then be fortunate enough again to be sponsored by a willing employer for an immigrant visa. Employers often sponsor a foreign national under the EB-2 (advanced degree) or EB-3 (skilled worker/professional) immigrant preference category. However, there are multiple hurdles to sponsorship by an employer that could make some employers reluctant to sponsor a foreign national, including the high financial cost of preparing an application and the need to obtain the U.S. Department of Labor’s approval of a labor certification prior to filing an application with the U.S. Citizenship and Immigration Services (USCIS) for the foreign national worker.

However, assuming that an employer is willing to sponsor an Indian national for an employment-based green card, the foreign national is still not in the clear. A long visa retrogression exists for immigrant visas for Indian nationals in the EB-2 and EB-3 employment preference categories. For example, based on the October 2016 visa bulletin, the wait time is around 9 years before an Indian national may even apply for a green card under the EB-2 category and over 11 years under the EB-3 category assuming that an immigrant petition was recently filed. While the Indian national is able to renew and extend their H-1B visas as he or she waits for the priority date to become current to apply for a green card, he or she is still many years away from enjoying the perks of being a green card holder. Unless there is major immigration reform, these long wait times for Indian nationals to obtain their green cards under the EB-2 and EB-3 employment preference categories are unlikely to change in the near future.

Benefits of EB-5 Immigrant Investor visa for Indian nationals

That is why during my trip to India, the EB-5 Immigrant Investor visa was such an attractive option for many Indian nationals who are aware of the extremely long visa retrogression and want an alternative and more expedient option to obtain a green card. Unlike the employment-based petitions described above, the immigrant visa numbers are current under the EB-5 category for Indian nationals and an EB-5 Immigrant Investor does not have to wait to apply for a green card once his or her I-526 Immigrant Investor Visa Petition has been approved. Additional benefits of the EB-5 program include the ability for the Indian national to self-sponsor, and to include his or her spouse and unmarried children under the age of 21 as dependents for the green card application. Further, there is no educational or language requirement and no labor certification is needed. What the EB-5 Immigrant Investor does need to demonstrate is that his or her minimum investment of $500,000 USD in a Targeted Employment Area (TEA) or rural area, or $1 million USD in a non-Targeted Employment Area (non-TEA) will ultimately result in the creation of 10 U.S. jobs. Therefore, as India’s economy continues to grow, more and more Indian students, professionals, and business owners are taking advantage of the EB-5 Immigrant Investor Visa Program as a means to obtain their green cards quicker to realize their personal and professional goals in the United States. There are many benefits to being a green card holder including the freedom to work and live in the U.S. permanently, the potential reduction in educational costs due to the eligibility to receive scholarships and federal loans, and the ability to seek U.S. citizenship. For many Indian nationals with the financial means to invest, the EB-5 Immigrant Investor Program is a newer and more straightforward immigrant option.

For more information about the EB-5 Immigrant Investor Visa please contact me at [email protected] or at 212-230-2826.