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Why Indian Nationals Should Strongly Consider EB-5 Investments

Individuals born in India already know that the green card process under EB-2 and EB-3 is exceptionally long. Individuals born in India, with the means to do so, should pursue EB-5 green card investments.

At the time of publication, the final action dates for EB-2 and EB-3 for individuals born in India are March 1, 2012 and June 1, 2012, respectively. The dates for filing are only a couple of months advanced in 2012. Comparatively, many of the EB-5 categories are current for dates for filing. 

On top of the current backlog, USCIS recently released information that is even more discouraging. USCIS believes it currently has sufficient I-485 Adjustment of Status petitions on file to not move the visa bulletin forward significantly for several years.

“USCIS and DOS have significant volumes of employment-based adjustment of status and immigrant visa applications in their inventories. For some categories, including EB-2 and EB-3 for noncitizens chargeable to India, the agencies already have sufficient applications on hand to use up all of the available visas for FY 2024 and several fiscal years in the future.”

Indian nationals may be slated to wait in excess of 15 years from the date of a PERM filing. Given this exceptional backlog, the EB-5 category looks very attractive. 

In addition to the priority dates, USCIS clarified this year that the investment does not need to be maintained throughout the lifecycle of the EB-5 process. Investors may receive their capital back after two years.

How much do I need to invest to get an EB-5 green card?

An investor must make an investment of at least $800,000. Those funds are likely to be returned. However, the investor should be prepared to spend an additional $50,000 – $80,000 in legal and administrative fees to submit an EB-5 petition.

The $800,000 must come from personal funds. An individual must invest all of the capital prior to the time of submitting the EB-5 petition. 

When can I file for adjustment of status based on an EB-5 green card petition?

At this time, investors inside the US can file for adjustment of status concurrent with filing the first part of the EB-5 application process, the I-526 petition.

How quickly will I get work authorization?

The timing of the issuance of work authorization fluctuates. Currently processing times range between 3 and 11 months depending on which USCIS service center processes the application.

How long will the process take?

The overall EB-5 process is very long. There are three steps to the EB-5 process.

Step 1: I-526 Petition

Once an individual has made a qualifying investment, that individual files an I-526 petition with USCIS. In the petition the individual must demonstrate where he/she received the funds to invest and how the qualifying investment will generate 10 new US jobs. The current processing time is in excess of 4 years for individuals born in India.

Step 2: I-485 Adjustment of Status

Individuals in the US may be able to concurrently file an adjustment of status petition with the I-526 petition. As noted above, work and travel authorization based on the pending adjustment may be available in 3-11 months.

Once the I-526 is approved, USCIS will adjudicate the I-485 petition. This may take an additional 6-12 months after the I-526 is approved. USCIS will issue a conditional green card valid for two years.

Step 3: I-829 Removal of Conditions

Within 90 days of the conditional green card expiring, the investor must file an I-829 petition to remove the conditions. In this petition the investor must show that the required 10 US jobs were created. The current processing time is over six years.

With this in mind, the total timeline for the EB-5 process is over 12 years. However, work authorization independent of employer sponsorship is available in as little as three months.

Can my children get green cards through the EB-5 process?

Yes, children under 21 can file for adjustment of status with a parent. This is one of the major advantages of the EB-5 program over the EB-2 and EB-3 processes, as individuals can get their children work authorization and green cards. With the current EB-2 and EB-3 backlogs, many children of Indian nationals will age out and be forced to pursue independent immigration processes.

Can I maintain my existing work authorization, such as H-1B status?

Yes. The EB-5 green card process will not disturb H-1B work authorization. An investor will be able to pursue jobs without sponsorship once work authorization is issued.

Will an EB-5 petition impact an existing EB-2 or EB-3 process?

No, an existing EB-2 or EB-3 process will not be disturbed. Should the EB-5 process need to be abandoned or fail, an existing EB-2 or EB-3 priority date may still be used to adjust.