H-1B and Tech Layoffs: Is there another option?

By Zoe Wollenschlaeger

If you’ve paid attention to the news or your LinkedIn feed, it should come as no surprise that 2022 was a devastating year for employees in the technology industry. Meta, Amazon, Twitter, and Peloton are just a few of the hundreds of tech companies laying off record numbers of employees. In 2022 alone, almost 150,000 employees were laid off and 2023 doesn’t look any more promising.

The reason for the growing trend in layoffs is increasing economic uncertainty and poor internal performance within the companies. According to Goldman Sachs Research, “[the] tech layoffs are an unfortunate side effect of the growth slowdown and tighter financial conditions necessary to rebalance the broader labor market.” Despite this, the technology industry remains competitive and the number of open tech positions is well above its pre-pandemic level. For many Americans, a layoff is just a temporary setback in their career.  

However, for the large number of foreign nationals residing in the US on an H-1B employment visa, a layoff could mean the end of their life in the United States. As the H-1B visa requires sponsorship from an employer, termination of one’s job also means termination of one’s visa.

H-1B and Tech Layoffs

Over 600,000 foreign nationals are in the United States under the H-1B visa, with the largest percentage from India and China. The vast majority of H-1B employees work in the science and technology fields. With increasing layoffs, this population is the most at risk of losing their livelihoods and being forced to return to their home countries.

 After a layoff, H-1B employees have 60 days to find a new employer who is willing to sponsor their H-1B renewal and fees associated with a green card application. These fees can cost upwards of $20,000 and make foreign nationals less attractive to potential employers. Aside from the financial loss, being forced to return home has countless social, mental, and emotional costs on the laid-off employees. From being forced to move out of your home, resettling your family, and being uprooted from your friends and community – the tech layoffs pose a much more significant threat to H-1B holders than American citizens.

However, this is nothing new. This is not the first recession, this is not the first time companies have laid off employees, and this is not the first time H-1B visa holders have had to face the prospect of returning home. H-1B holders always face the risk of deportation or termination of their job – the H-1B visa is only a temporary path to the USA with no guaranteed opportunity to stay in the country for good. The reality is that H-1B holders are not permanent residents or citizens and their future in the USA is not guaranteed.

There is another option: EB-5

The issue facing H-1B holders is not just the economy and availability of jobs – the issue also lies in the failure of immigration experts to adequately support foreign nationals in securing a future in the USA. The H-1B visa is a great option for those who want to come to the USA to work temporarily. But for those who want more, to start a business, to own property, to raise their families in the USA – the H-1B is not enough.

But there is another option. The EB-5 Visa is an Investor Visa that any foreign national can apply for regardless of status (H-1B, L-1, O-1, B-1, etc.). The visa requires a large investment but secures a green card and permanent resident status in only five years. The EB-5 visa gives immigrants the freedom to become an entrepreneur or an investor. They can focus on their own business and personal interests rather than sacrificing decades of their life to a technology conglomerate.

On top of that, during those five years, the Investor and their family can live, work, and study anywhere in the United States without the constraints of a visa. EB-5 Investors can secure a path to citizenship for their family and end the generational poverty many immigrants face. EB-5 opens the door to the privileges of US Citizenship and a secure, stable future in the US. This visa is a permanent alternative to H-1B that gives the visa holder the power, rather than an employer.

With an H-1B visa, the applicant’s children can temporarily live in the US only until the age of 21 on the H-4 visa. At 21, they age out of the program and have to find their own path to US residency. With the EB-5 visa, all children under the age of 21 can become permanent residents through their parent’s EB-5 application. Once they turn 21, they will already have a US green card or citizenship and can stay in the country regardless of employment or legal status. The EB-5 visa also guarantees children the opportunity to study at a university in the US without the restraints of the F-1 student visa, which prohibits students from working and forces them to leave the country or compete in the H-1B lottery after graduation. If a future in the USA is your dream for your children, EB-5 is the answer, not H-1B. 

New legislation introduced in March 2022 added concurrent filing to the EB-5 program, allowing investors to file their I-526 and Adjustment of Status simultaneously. This allows investors and their families to live, work, and study anywhere in the United States while they wait for the approval of their green cards. For someone laid off on an H-1B visa, filing for an EB-5 visa within the 60-day window could secure an employment authorization card and advanced parole – allowing the Petitioner to live and work in the USA as well as travel freely to other countries. Rather than waiting years to be approved in the H-1B lottery, EB-5 allows investors and their families to plant roots in the USA before receiving approval.

EB-5 is by far the easiest and fastest track to a permanent future in the United States. Furthermore, qualification for the EB-5 program is not based on nationality. Filing for EB-5 means that you can avoid the significant visa backlogs that plague EB-2 and EB-3 visa cases. The new legislation also introduced investment categories that reserve a percentage of EB-5 visas for investments in targeted employment areas (TEA) and rural areas. Investing in these categories can potentially speed up the application process and increase an investor’s chance of approval. H-1B is a cut-throat and extremely competitive lottery, whilst EB-5 encourages investment and makes the application process as easy as possible for petitioners.

Immigration experts always speak of how extraordinary and capable their clients are. But their services are not consistent with how they characterize immigrants. They push their clients to compete for temporary work visas because they are too intimidated by EB-5. We urge other leaders in the immigration industry to offer their clients the opportunity to become an investor through the EB-5 Program. Don’t be afraid to encourage EB-5 investment – give your clients the opportunity to prove themselves and create a permanent future in the USA.