Rishi P. Oza
By Rishi P Oza
For decades, the story of the high-skilled South Asian professional in the United States followed a predictable trajectory: come to the US on an F-1 student visa, secure an H-1B lottery slot, gain corporate sponsorship through an EB-2 or EB-3 sponsorship and wait out the process. Yet for hundreds of thousands of Indian-born engineers, physicians, scientists, and tech leaders across the country that traditional dream has turned into a bureaucratic waiting room.
While the Trump Administration has focused almost entirely on the enforcement of immigration laws, it has done little to help alleviate the continued problem of immigration backlogs. As such, many of these highly skilled individuals have begun to explore other options for themselves.
With employment-based backlogs for Indian nationals stretching past decades, families are increasingly exposed to precarious realities: strict 60-day clocks following a possible layoff, huge visa interview wait times at US Consulates abroad, endless visa renewal filings and the constant fear of teenage children “aging out” of H-4 dependency at age 21. A growing number of South Asian families are shifting from passively waiting under employer control to actively seeking their own solutions. By using saved, borrowed or gifted capital or framing their professional portfolios around extraordinary ability, the Indian diaspora is forging independent paths to permanent residency status.
A potential solution that has gotten increasing attention is the EB-5 employment creation visa classification. Recent changes to the EB-5 program have made the visa an increasingly attractive option for those that can afford the requirements. Historically viewed as a risky or prohibitive option, strategic updates to the program have made EB-5 one of the most compelling fast-track options for eligible families. Under current regulations, 20% of annual EB-5 visas are set aside for projects in Rural Targeted Employment Areas (TEAs), with additional set-asides for high-unemployment urban zones. Crucially, these reserved categories currently feature priority dates that are not backlogged – allowing Indian-born applicants to bypass the decade-long general queue entirely.
For Indians already living and working in the US, the EB-5 program now provides a game-changing option to permanent residency: concurrent filings for adjustment of status. Unlike in the past, an EB-5 applicant can simultaneously submit their EB-5 Immigrant Petition with their Application for Adjustment of Status and within months of filing can secure both a Employment Authorization Document and Advanced Parole travel permission.
While the minimum investment threshold stands at $800,000 in TEA projects or $1,050,000 for standard investments and the investment does require the creation of 10 new full-time jobs, many Indian applicants are pooling family financial assets, selling heritage real estate or leveraging accumulated retirement savings to fund these petitions. With luck (and the continued currency of priority dates), these EB-5 applicants can avoid the decades long queue that continues to bedevil those in the EB-2 and EB-3 visa categories.
If EB-5 leverages financial capital, self-petitioned visas leverage intellectual capital. Many professionals assume that top-tier immigration categories are reserved exclusively for Nobel laureates or celebrity scholars. In reality, engineers, researchers, and executives frequently possess the credentials needed to qualify if presented correctly and in a persuasive manner. Foremost, the EB-1A allows individuals to self-petition without an employer sponsor or a PERM labor certification job offer. To qualify, an applicant must satisfy at least 3 of 10 USCIS criteria (or demonstrate a major international award), such as commanding a high salary or publications of significance in the applicant’s field of expertise.
In tech and research hubs like Durham and Chapel Hill, professionals are systematically building portfolios around original contributions like patents or proprietary clinical methodologies; peer reviewed work, such as serving as a peer reviewer for prestigious journals or judging the work of other and media recognition, such as authoring published trade articles, receiving industry awards, or holding critical leadership roles in established organizations.
While these opportunities are not necessarily available on a daily basis, those individuals that intentionally seek out such opportunities may be able to create avenues through which an EB-1A may be an option in the future. Moreover, the current rigidity from USCIS in adjudications will not last forever; with Mr. Trump’s approval ratings in the low 30s, a mid-term Congressional change seems ever likely and may be a harbinger for a political change in 2028. As mentioned in this column many times before, any change in administration brings changes in priorities to the immigration system, so building with an eye to the future is likely a prudent strategy.
For those who may not yet meet the rigorous EB-1A standard, the National Interest Waiver (NIW) allows applicants in the EB-2 category to request that the job offer, and PERM requirement be waived because their work holds “substantial merit and national importance” to the United States. The NIW is considered to be a first cousin to the EB-1A, but tends to focus more on the applicant’s potential, whereas the EB-1A requires an applicant to show that they have already reached the pinnacle of their field. Individuals and specialists working in artificial intelligence, biotechnology, clean energy infrastructure, and rural healthcare delivery are increasingly using NIW petitions to break from the employer-sponsored requirement of the PERM process. While the NIW does not necessarily provide the speed associated with the EB-1A, it does provide flexibility in pursuing professional opportunities and not being locked in by a single employer.
The landscape of US immigration seems to be changing at a whirlwind pace, for many Indian citizens the wait times for permanent residency status have too often moved at a crawl. Absent Congressional action, which this author cynically doesn’t see happening anytime soon, structural backlogs remain a reality and therefore green card applicants must think proactively about whether a move away from passive corporate reliance to active self-petitioning is a better option for themselves and their families. Making the jump to an EB-5, EB-1A or NIW may help Indian families across the Carolinas to write their own American story and do so on their own terms.
Rishi P Oza is Partner at Brown Immigration Law, a firm that focuses solely on immigration law; he practices in Durham. Contact: roza@rbrownllc.com.
