Understanding the H-1B Visa Cap and Why Many Are Considering the EB-5

Published: February 25, 2025

Every year, numerous foreign nationals seek job opportunities in the US through employment-based visas. The H-1B visa is a well-known route for foreign nationals to secure permanent residency in the US. Although it can provide quick access to the US, the H-1B visa category is temporary and subject to various restrictions. 

For instance, Congress capped the number of H-1B petitions at 65,000 annually. This cap doesn’t apply to individuals holding advanced degrees from US institutions who can qualify for an additional 20,000 visas. Moreover, ongoing renewals and employment sponsorship are necessary for this employment-based category. 

Backlogs are also one of the most pressing problems for H-1B visa holders, especially if you’re from countries like India and China, where demands are high. Due to this and other constraints associated with the H-1B visa program, many are exploring different avenues to become permanent US residents. Learn why H-1B visa holders are considering the EB-5 visa program. 

Overview of the EB-5 Immigrant Investor Program

Under the Immigration and Nationality Act (INA), foreign nationals who invest in US businesses and create employment opportunities for American workers can be eligible to secure visas and relocate to the country. 

The EB-5 program, commonly known as the employment-based fifth preference immigrant visa category, was introduced to attract foreign investment. It enables qualified investors and their families to acquire permanent residency. 

Approximately 10,000 EB-5 visas are available to foreign entrepreneurs, their spouses, and children every year. Applicants seeking an E5 immigrant investor visa must satisfy minimum investments in a new commercial enterprise in the US without incurring any debt. The following are the minimum thresholds a foreign national must invest to qualify for an EB-5 visa: 

• $1.8 million for general investments
• $900,000 for Targeted Employment Area (TEA)

The qualifying investment must also generate or preserve full-time jobs for at least 10 eligible US workers. Job creation must be demonstrated within two years of acquiring conditional permanent residency. 

Reasons H-1B Visa Holders Consider Applying for EB-5 Visas

The EB-5 visa program stands out due to its investment-centric approach. It enables investors to boost the US economy and acquire lawful permanent resident status. Likewise, securing an EB-5 visa offers several advantages that address H-1B visa limitations. The following are specific reasons H-1B visa holders and other visa holders opt to make the transition: 

Direct route to permanent residency

Unlike the H-1B visa category, the EB-5 visas are not temporary and don’t require multiple renewals. The program offers a direct route to permanent residency. Once approved, the EB-5 immigrant investors can receive a conditional green card for two years. 

Investors can remove the conditions on their residency. However, they must prove they have sustained the investment and fulfilled the job creation requirements. Once they meet the program’s standards, EB-5 investors and any eligible family members can convert to a permanent green card. 

No employer sponsorship requirement

An H-1B visa depends on the employer sponsorship requirement. It enables US employers to temporarily hire foreign workers in specialty occupations. However, employment cannot start until the USCIS approves the petition of potential employers. This requirement restricts job mobility and leads to instability when employment ends. 

Unlike other employment-based employment categories, the EB-5 visa eliminates the reliance on employer sponsorship. It addresses the limitations of the H-1B visas, allowing the investors to apply independently. This gives them complete control over their immigration status, as they can work in any field, launch their own business, or opt not to work. 

No lottery limitations

The H-1B visa is subject to the United States Citizenship and Immigration Services (USCIS) lottery system. If the number of applications exceeds the annual cap, the system randomly selects which petitions will be processed, making the application process more uncertain. 

Despite being subject to an annual visa quota, the EB-5 program doesn’t involve a lottery. Since it doesn’t depend on a random selection, the EB-5 application process leads to a more predictable outcome. This makes a reliable alternative for those who satisfy the investment requirements. 

Explore the Best Immigration Pathway With ALG Lawyers

The EB-5 visa program is a compelling immigration pathway for foreign nationals. However, each circumstance is unique, underscoring the importance of seeking legal guidance. An immigration lawyer in Los Angeles can help you explore the best route for permanent residency with better clarity and confidence. Connect with ALG Lawyers now for an initial consultation.