EB-5: The Best (and Only?) Option for Many Indian Nationals (v2)

It is not easy being a citizen of India who wants to live and work in the U.S. and become a legal permanent resident and possibly a citizen of the U.S. We know – – we represent many of them.

Our Indian clients don’t just face a “double whammy”. They face a multi-front coordinated series of hurdles and roadblocks.

Let’s set out the problem, and then we’ll provide what, for many, is the only solution.

The present Administration in Washington has been no friend to Indian citizens. Here’s why:

• Upon completion of studies, our Indian client is often eligible for practical training (“OPT”). The present Administration is actively attempting to restrict OPT, which has been the subject of federal court litigation.
• If our Indian client wants to work in the U.S. after her student status expires, in most cases she will need to be sponsored for an H-1B visa. Unfortunately, that requires entering the H-1B lottery with about a 1 in 4 chance of being selected in the lottery unless she has obtained a master’s or higher degree in the U.S. (the chances go up to about 3 in 4 if she does have such a degree).
• If our Indian client is lucky enough to have his petition selected in the lottery, the chances of having the H-1B petition approved have been significantly reduced by a combination of 3 separate new restrictive adjudication policies of USCIS relating to H-1B adjudications, especially focused on occupations which predominantly attract Indian nationals. These new interpretations include redefining an H-1B “specialty occupation” to preclude many IT and other positions that may have more than one possible major field of study for entry into the occupation. Another restrictive interpretation has produced denials of H-1B petitions that pay level 1 wages. A third restrictive new policy is to require H-1B employers to identify in advance the specific itinerary of all work locations at which the employee will work during the course of the 3-year H-1B approval period. This is often not possible.
• Even if our Indian client is able to navigate through these new restrictions, there is no confidence that she will be able to get an extension of her H-1B status. Prior to the implementation of a new policy, USCIS always gave deference to its approval of an H-1B petition when it came time to filing an extension. Almost unfathomably, USCIS now states it will give no deference to its previous approval. As a result, any Indian national in the U.S. in H-1B status (and any employer of such an individual) has no assurance that she will be able to remain in the job going forward.
• Assuming that our Indian client is lucky enough to have an employer that is willing to sponsor him for a green card through the PERM labor certification process, his application will go into the EB-2 or EB-3 quota. Although no one knows for sure how long the wait will be in those categories, a conservative estimate is in excess of 12 years. During those 12 years, if he leaves his employer, or even if he gets promoted to a new position, he would have to start the process all over again.
• The silver lining that enables an Indian citizen to obtain H-1B extensions during the entire quota waiting period was provided in a law entitled AC21. There are rumblings that the present Administration is attempting to chip away at, or repeal, that legislation.
• Until April 2018, the confluence of all of the above hurdles have led us to advise our Indian clients that the only way out is EB-1 (extraordinary ability) or EB-5 (investment). However, starting in April 2018, the Indian EB-1 quota is backlogged to 2012. While that cutoff date may move forward in the coming months, it is likely that the waiting list in the EB-1 category for Indian nationals will not be short lived.

That leaves one option for the Indian national seeking to obtain permanent resident status in the reasonably near future. That option is EB-5. While the minimum $500,000 investment amount means it is certainly not an option for all of our Indian clients, it is an option for some – – either through their own means or through gifts – – and it is an option that allows the Indian citizen to have flexibility in his employment, including the ability to be promoted or to switch employers without affecting her green card application.

Actually, the time is especially propitious for considering the EB-5 process for two reasons. The $500,000 investment amount has been in place since the program started in 1990. There is a good chance that it will be increased in the near future. An application filed before the increase will grandfather the Indian investor at the lower amount.

Secondly, there is no quota waiting list for Indian EB-5 investors… yet. The increasing demand for EB-5 in India will likely create a quota backlog in future years. Getting in line now may save a multi-year wait.

I will mention one other option, which may have a lower investment amount but does not lead to a green card. It does, however, lead to the ability to remain in the U.S., perhaps indefinitely. That is the option of obtaining citizenship by investment in Grenada (minimum investment amount of $150,000) and obtaining an E-2 treaty investor visa in the U.S. (no minimum investment amount, but many E-2 visas have been approved at the $100,000 to $200,000 investment level). Any reader interested in this option can refer to any of the numerous blogs that I have published on this subject.

So, while the immigration paths are being systematically blocked for many citizens of India who seek a long-term future in the U.S., for some, there is still a light at the end of the tunnel.

The material contained in this article does not constitute direct legal advice and is for informational purposes only.  An attorney-client relationship is not presumed or intended by receipt or review of this presentation.  The information provided should never replace informed counsel when specific immigration-related guidance is needed.

By H. Ronald Klasko, leading lawyer representing EB-5 clients. Original article was posted on April 19, 2018 and a link to it can be found here.