Is Converting from H-1B to EB-5 the Right Option for You? 

Published: March 6, 2025

The H-1B visa program allows US companies and other employers to obtain foreign workers temporarily in specialized fields. Considering the dual-intent nature of an H-1B visa, a high-skilled foreign worker can secure a green without jeopardizing one’s immigration status. But the H-1B classification comes with restrictions that make it less appealing in the long term. 

According to the US Citizenship and Immigration Services (USCIS) annual report, H-1B petition filings dropped 386,559 in FY 2023. That’s an 18 percent decline from the 474,301 petitions filed in FY 2022. From the same report, approvals for H-1B visa applications decreased by 13 percent, from 442,043 approved petitions in the previous year to 386,318 in FY 2023. 

Having your H1-B petition denied by USCIS or a US consulate abroad can be frustrating. Yet,  this is only one of the many uncertainties surrounding the H-1B process. Because of the reliance on a single employer and the inherent unpredictability of the annual lottery system, foreign workers are exploring the EB-5 Immigrant Investor Program. 

Both the H-1B and EB-5 visas serve a unique purpose. Depending on your immigration needs and goals, the EB-5 program can be a more secure and flexible alternative. Here, ALG Lawyers will guide you through the factors worth considering in deciding whether converting from H-1B to EB-5 is the right option for you. 

Immigration Goals

The EB-5 visa can be a reliable alternative to an H-1B visa if you aim to be a lawful permanent resident without the constraints of employer sponsorship. Since you’re not dependent on a specific employer, you have greater autonomy in your immigration goals. You can secure employment in any field, start a business, or opt not to work at all. 

An EB-5 visa provides a more straightforward pathway to getting a green card as it bypasses the lengthy processes of labor certification and the unpredictable lottery system. Although you get a conditional green card initially for two years, you can transition to permanent residency once you satisfy the investment and job creation requirements. 

Capital Investment Requirements

Evaluating your financial resources and readiness is a crucial factor worth considering before making the switch. While you don’t need to meet any specific education or professional experience, sufficient investment capital is necessary to qualify for an EB-5 visa. Under 8 CFR § 204.6, the qualifying minimum investment requirements for the EB-5 visa program are the following: 

• $900,000 for Targeted Employment Areas (TEA), encompassing rural locations or those with high unemployment rates. 
• $1.8 million for general projects targeting outside of TEA, typically referring to urban or economically developed areas. 

Transitioning to an EB-5 visa will be beneficial if you can meet these financial requirements. Besides offering a direct path to a green card, the EB-5 program gives you an opportunity for a return on investment. 

Job Creation Requirements

In addition to investing the required capital in a new commercial enterprise, EB-5 investments must generate 10 qualifying job positions for US workers. The job creation must be demonstrated within two years of filing your initial EB-5 petition. Below are two methods you can utilize to satisfy the job creation requirements. 

Direct job creation

A new commercial enterprise situated outside of a regional center must directly create full-time positions. The employment is considered full-time if it requires a minimum of 35 hours of work per week. Moreover, direct jobs must involve an established employment relationship between the enterprise and its employees. 

That means the enterprise must directly hire and manage its employees. Although part-time positions don’t qualify, job-sharing arrangements are authorized under certain conditions. This involves two or more qualifying employees sharing a single full-time position. 

Indirect job creation

Conversely, indirect jobs are those generated in other businesses as a byproduct of the EB-5 project. Investors must go through an EB-5 regional center to qualify for the creation of indirect jobs. Regional centers simplify job creation requirements for EB-5 investors by allowing credit for both direct and indirect jobs.

Legitimacy of the Funds 

Under the USCIS Policy Manual, each EB-5 investor must prove they legally owned the invested funds and that they acquired it through legitimate means. This requirement applies to all funds utilized within the EB-5 translation even those allocated for administrative costs and fees. Funds acquired through unlawful means don’t qualify as capital for investment purposes. 

Since investment funds can come from multiple sources, investors often need to submit multiple supporting documents to demonstrate their legitimacy. Examples of lawful sources of EB-5 investment funds can include the following: 

• Real estate sales
• Salary payments
• Stock proceeds
• Gifts
• Inheritance, 
• Loans

Per-Country Cap

Approximately 10,000 EB-5 visas are allocated to qualified investors every year. On top of that, there’s a 7 percent per-country cap for the number of visas available to nationals of any single country. 

Regardless of a country’s population or the number of applicants, only around 700 EB-5 visas are available per country annually for primary investors and corresponding family members. Suppose you’re from China, India, or other countries with high demand for EB-5 visas. You may facer longer wait periods because of the per-country caps. 

Ensure a Smooth Transition With ALG Lawyers

Converting from an H-1B visa to an EB-5 visa can be a strategic pathway for foreign investors to obtain permanent residency in the US. However, careful consideration of your long-term goals and personal circumstances is essential to ensure a smooth transition. You must also satisfy strict requirements to be eligible for the EB-5 program. 

The assistance of an experienced Los Angeles immigration lawyer is indispensable in navigating the complexities of securing an EB-5 visa. Our team at ALG Lawyer is here to guide you through the process, from assessing your eligibility to complying with the necessary documents and aligning your investment with your immigration goals. Contact our law firm now for further legal guidance.