EB5 Investors Magazine Volume 7, Issue 1 - Page 58

EB5 INVESTORS M AGAZINE 56 There is a tremendous misconception that E-2 visa is an alternative to EB-5. ” Some of the key benefits of EB-5 are: • Students do not need any particular company to sponsor them or give them a job offer. • EB-5 leads to a green card and ultimately U.S. citizenship. OPT, however, expires after a defined period of 12 months. STEM students can get an additional 24-month extension. 6 • EB-5 provides the main applicant and his/ her derivative applicants such as a spouse, and unmarried children under 21, the freedom to study with potentially reduced “in-state” tuition, work and live in the United States without additional immigration requirements. 7, 8, 9 • Unlike EB-5, H-1B is subject to lottery once a year. Generally, there are 250,000 applicants a year for 65,000 to 85,000 spots. Effective Aug. 9, 2018, any student with an F, J or M visa would begin unlawful presence the day after his coursework or OPT terminates. This could have devastating results if the student accrues more than 180 days of unlawful presence in the Un ite d St ates. He wou ld b e ba r re d f rom entering the United States for three years. If the violation is more than 365 days, then he would be barred for ten years. Therefore, applying for the EB-5 early on so that adjustment of status can be achieved before any unlawful days are accrued is of utmost importance today. 10 The limited duration of OPT and the low chance of approval feature of H1-B discourages prospective employers to extend job offers commensurate with the international students’ education. They opt to hire potentially a less qualified candidate who is authorized to work in the United States. As a result, there is an increased number of EB-5 applicants from countries such as India, South Korea, Vietnam and Brazil. 11 There is a tremendous misconception that E-2 visa is an alternative to EB-5. 12 The E-2 is a nonimmigrant visa, while the EB-5 is an immigrant visa. This means that the E-2 visa has a definite expiration date. It may be renewed or extended but the immigration authorities’ expectation is that the applicant will leave the U.S. when their purpose of being in the U.S. is no longer valid. 13 Typically, a student who applies early for the EB-5 does not have any need to consider the E-2 visa. It is an additional expense that is not necessary. If the student does not have any time left in his current F-1 visa and OPT combined to allow him to stay in the United States any longer, then E-2 should be considered since this visa typically can be obtained in less than six months and in some cases even faster than that. Once the applicant has secured the E-2, he can now apply for the EB-5. This could be done either by expanding the mandate of the E-2 enterprise or making a separate investment into a Regional Center sponsored project. While it might be difficult to change from E-2 to an EB-5 direct investment, it is feasible. 14 In order to successfully organize the transition, and ensure that the EB-5 visa requirements are met, a Matter of Ho- compliant business plan will be necessary. 15