From Temporary to Permanent: An EB-5 Guide for H-1B Professionals
Part 1 of 4
For much of the past two decades, the H-1B was the default immigration strategy for skilled foreign professionals working in the United States. Employers sponsored it, attorneys navigated it, and the assumption was that if you played the process correctly, a green card would eventually follow. That assumption is harder to hold today.
Lottery odds have tightened dramatically. New administrative fees and policy changes introduced in the past year have added cost and complexity. Employer dependency remains baked into every aspect of the category. And the six-year cap creates a hard deadline that the green card process does not always accommodate. For H-1B holders in tech, finance, engineering, and other professional fields, the question is no longer whether the H-1B has limits. It is what to do about them.
This post is the first in a four-part series examining how the EB-5 investor visa program, particularly under the concurrent filing provisions introduced by the 2022 Reform and Integrity Act (RIA), gives H-1B professionals a parallel path to permanent residency that does not depend on an employer, a lottery, or any single variable staying constant. We start with the problem.
The H-1B Is Employer-Dependent by Design
H-1B classification is employer, occupation, worksite, and wage specific. Every element of the petition is tied to a specific employer-employee relationship. Change your employer and a new petition must be filed. Change your role, your worksite, or your compensation structure, and the same analysis applies. Porting provisions allow you to begin working for a new employer once a petition has been filed on your behalf, but you remain dependent on that employer’s willingness to file and maintain that petition.
This dependency extends to the green card process. H-4 spousal work authorization, one of the most frequently cited benefits of H-1B status, is only available after the H-1B holder has an approved I-140 petition, the penultimate step in the employer-based green card process. Reaching that step requires a minimum of two years, and only if the employer agrees to sponsor at all. Many employers impose tenure or performance milestones before initiating sponsorship. It is not a given, and it is entirely within the employer’s discretion.
The Lottery: 470,000 Registrations for 85,000 Slots
Even before employer dependency becomes a factor, H-1B status has to be obtained. For private-sector employers, that means the lottery. There are 65,000 H-1B slots available annually for bachelor’s degree holders and an additional 20,000 for those with U.S. master’s degrees or higher. In 2025, more than 470,000 registrations competed for those 85,000 slots. In 2026, registrations remained around 350,000.
A new weighted selection rule has further skewed those odds. Positions at the highest wage level now receive four chances at selection in the lottery versus one chance for entry-level positions. For professionals at earlier career stages or in lower-wage roles, the probability of selection has dropped significantly compared to prior years. The lottery occurs once a year. A miss means starting over, often without work authorization for that entire period.
New Costs and Policy Risks
The current administration has added new layers of cost and risk to the H-1B category. The presidential proclamation “Restriction on Entry of Certain Nonimmigrant Workers,” signed September 19, 2025, introduced a $100,000 fee applicable to petitions filed on behalf of beneficiaries outside the United States. For professionals seeking initial H-1B status from abroad, this represents a substantial increase in the cost of entry.
Beyond that specific measure, the broader policy environment has introduced uncertainty around H-1B renewals, visa stamping requirements, and enforcement priorities that did not exist in prior years. H-1B holders who previously relied on the relative stability of the category are finding that stability harder to count on.
The Six-Year Cap and the Green Card Race
H-1B status is capped at six years. Extensions beyond year six are available only if a green card process has been initiated: either by starting that process before the end of the fifth year in H-1B status, or by having an approved I-140 or I-526 petition before the end of the sixth year. For professionals who entered H-1B status without an employer willing to sponsor a green card early, or whose employer’s sponsorship timeline has slipped, the six-year clock becomes a genuine constraint.
The employer-based green card process (PERM, I-140, then adjustment of status or consular processing) typically takes years, and that timeline is entirely dependent on employer commitment at every step. An employer who initiates PERM can also withdraw it. A company restructuring, acquisition, or layoff can reset the clock entirely. For H-1B holders who have invested years building toward permanent residency through employer sponsorship, that exposure is real.
The Case for a Parallel Strategy
None of the above means the H-1B is without value. For many professionals, it remains a workable path and employer sponsorship remains a live option. The problem is singular dependence on it. A single layoff, a lottery miss, or an employer’s decision to delay or withdraw sponsorship can collapse years of progress toward permanent residency.
EB-5 does not require replacing the H-1B. It can run alongside it. Pursuing EB-5 concurrently with an employer-sponsored PERM or I-140 is entirely permissible. An investor can hold as many bases of eligibility for permanent residency as they qualify for; only one green card is ever issued. What EB-5 adds is independence: a path to permanent residency that does not depend on an employer’s decisions, a lottery outcome, or any single variable remaining constant.
The next post in this series covers the most urgent reason to act now: the September 30, 2026 grandfathering deadline, the January 2027 price increase, and the closing window for concurrent adjustment of status filing that makes EB-5 particularly powerful for H-1B holders today.
Ready to Explore EB-5?
CanAm Enterprises has raised $4B+ in EB-5 capital, facilitated 9,300+ permanent green cards, and maintained a 100% USCIS project approval rate across 75+ projects spanning more than 30 years. Contact our team to learn more about current projects and whether EB-5 fits your immigration strategy.
Contact us at info@canamenterprises.com or +1 (212) 668-0690.
About the Speakers
Peter Calabrese, CEO, CanAm Investor Services
Peter Calabrese is CEO of CanAm Investor Services, the FINRA-registered broker-dealer affiliate of CanAm Enterprises. He works closely with prospective investors navigating the EB-5 process and advises on project selection and investment structuring.
Nicolai Hinrichsen, Managing Partner, Miller Mayer EB-5 Practice
Nicolai Hinrichsen is Managing Partner of Miller Mayer’s EB-5 practice, one of the largest EB-5 law firms by volume. Miller Mayer has been active in the EB-5 program since its inception in 1993.
Kristal Ozmun, Managing Partner, Miller Mayer General Immigration Practice
Kristal Ozmun is Managing Partner of Miller Mayer’s General Immigration Practice Group. She advises clients across H-1B, J-1, adjustment of status, and EB-5 matters, with a particular focus on physicians and other professionals navigating complex immigration pathways.
