EB5 INVESTORS M AGAZINE
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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the U.S. when their purpose of being in the U.S. is no
longer valid. 13 Typically, a student who applies early for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