DHS Update: New Regulations Affecting H-1B Workers Being Considered

The Department of Homeland Security (DHS) is reportedly considering new regulations that would limit the ability of H-1B workers who are in the lawful permanent residence (LPR) process to obtain an extension of their H-1B status beyond the usual six-year limit of authorized stay pursuant to AC21 (The American Competitiveness in the 21st Century Act). The reported proposal, which arises from President Trump’s “Buy American, Hire American” executive order, could impact thousands of H-1B workers and their families, primarily Indian and Chinese nationals, who have been waiting in line for their green card for years.

If successful, new regulations disallowing H1B extensions under AC21 will have devastating consequences on H1B workers and their employers.  Without alternative visa options, these workers may have to give up their jobs and leave the United States.  Because the wait time for an immigrant visa number under the Employment Based Second (EB-2) and Employment-Based Third (EB-3) immigrant visa categories is so long, especially for Indian nationals, the fear is that employers will withdraw their job offers and immigrant petitions for H1B workers if they are forced to leave the U.S.  

To date, DHS has not issued a proposed regulation or formal announcement regarding its intention to change its long-standing practice in adjudicating H-1B extensions under AC21. For DHS to implement such a change, it would need to issue a proposed regulation and follow the notice and comment rulemaking procedures set forth in the Administrative Procedure Act. That could take months. Any policy change before that could be subject to litigation. Moreover, any final rule could also be subject to litigation.

But, the fear is real and many Indian nationals here in the U.S. waiting on immigrant visas under the EB2 or EB3 categories are looking for a backup plan.  The one option that makes the most sense is Immigrant Investor Program, most commonly referred to as EB5 (Employment Based Fifth Preference).

The EB5 investor visa program has long been a popular alternative for Indian nationals looking to bypass the EB2 and EB3 backlog. The EB5 petition is filed by the individual investor and can run concurrently with a pending EB2 and EB3 petition, and does not jeopardize the EB2 or EB3 petition at all.  

The current minimum investment amount under the EB-5 program is $500,000.  This minimum amount is expected to increase to upwards of $1 million in the next few months.  We anticipate USCIS publishing new regulations in February 2018 with a 60-day grace period for investors wanting to invest at the $500,000 mark.  

The combination of USCIS changes to both the AC21 rules and the EB5 rules provides a window right now to act for Indian nationals in H-1B status waiting on EB2 or EB3 immigrant visas who want to participate in the EB5 program at the $500,000 price. The window will shut soon.  Indian nationals in H1B status waiting for their EB2 or EB3 priority date to become current and considering the EB-5 investment option should act immediately in order to take advantage of the current $500,000 investment amount. We have years of experience successfully representing Indian nationals through the entire EB5 process, from initial investment through obtainment of U.S. Citizenship and ultimate capital repayment.

Many of our EB5 clients from India who have pending EB2 or EB3 cases leverage their homes as a way to participate in the EB5 program, usually by getting a home equity loan.  Domestic employment earnings, savings, and/or investment accounts can be used, too.  In other cases, our clients’ employers are willing to give the client a salary advance, or a bonus advance, to help with the investment.  Relatives from overseas, or in the U.S., are also able to gift funds to the investor.  And, the investor can use funds and/or assets from overseas to accumulate the EB5 investment funds.  All funds used to make the $500,000 must be from a lawful source and be supported by exhaustive documentation demonstrating the path in which the investor came to obtain the funds.  

We have seen almost every possible scenario of Source and Path of Funds and can guide you through this nuanced process.  We have one of the highest approval ratings in the country. We can answer all of your questions and prepare you for success.

For more information about the EB5 program, or to set up a consultation, please contact one of our EB5 attorneys today.  Preparing and filing an EB5 petition can take up to a month or more in some cases, so time is of the essence.