Of late, Indian nationals here on H1-B who have hoped and prayed from relief from immigration purgatory due to the extended delays to receive Green Cards may be disappointed in the end. While the Fairness for High-Skilled Immigrants Act Legislation to address their horrible plight has passed the US House of Representatives on July 10, 2019, unfortunately, that is much sound and fury that signifies nothing. Two additional steps are required. Firstly, for the bill to become law, the bill must also pass the US Senate, which is currently controlled by Republicans. To put it in context, Govtrack.us, gives the bill a 3% chance of passing the senate. It has had no movement in the Senate since February.
Even if it manages passage in the Senate, the bill must also find the approval of President Trump. In our President, Indian H1-B holders may not find a very sympathetic person. The President uses Indian H1-B holders as the ‘examples’ of how US immigration policy as ‘stolen’ jobs from ‘American workers’. There is zero chance that the President would support H1-B relief legislation as it would go counter to his political messaging to his base.
The only conceivable path forward would be if he used it as a bargaining chip to extract his other ‘banner’ immigration goals, namely the funding of his border wall and resolution with respect to the DREAMERS. The Democrats will not deal away these important priorities, especially so close to the next Presidential election, where they might find themselves in power of both branches of government.
The problem for Indian H1-B holders is that time is not on their side. On July 24, 2019, the new EB-5 regulations were finally published and have an effective date of November 21, 2019. After that, the minimum investment amount for targeted employment area (TEA) projects increases to $900,000 (and few will qualify). The non-TEA project investment level will be $1.8 million. For H1-B holders, there is a stark choice, either invest under the EB-5 program now or face the increased minimum investment amount (and longer EB-5 wait times due to retrogression). The alternative is to remain in purgatory for at least another two years with no guarantee that legislation providing relief will ever be passed. Immigration reform is not easily accomplished, even when a single party controls both the Congress and the White House.
For those who can afford the $500,000 now, EB-5 may be the best option. Even if the investor does not have all the cash available, there are legal strategies that can be used to file on time and defer when the cash needs to be invested. See one of my recent articles summarizing the strategies:
Unfortunately, for those holding onto hope that H1-B will provide a final immigration solution, that hope may be misplaced and there is little time left with which to make a final decision before the EB-5 alternative becomes much more expensive.
Matt Gordon is a noted policy expert in the visa-based investments field and is an authority on structuring visa-based investments. Mr. Gordon’s career spans business operations, finance and law. He is the editor of the EB-5 Book, the legal treatise on the EB-5 program and a frequent lecturer to immigration attorneys. Mr. Gordon has participated in policy events, including those hosted by the White House and Harvard University’s Kennedy School of Government. Prior to founding E3iG, Mr. Gordon was an investment banker for a decade and ran the US division of a Swiss multi-national corporation. Mr. Gordon is a licensed attorney, having practiced mergers and acquisitions law at the beginning of his career with the largest and most reputable Wall Street firms including Fried Frank and Sullivan & Cromwell. Mr. Gordon received his B.S. in Policy Analysis from Cornell University and his J.D., cum laude, from the University of Pennsylvania School of Law.