Introduction
Peter Calabrese (00:06):
Hello, welcome. This is Peter Calabrese. I am CEO of CanAm Investor Services, the FINRA registered broker-dealer affiliate of CanAm Enterprises, one of the largest and certainly most successful regional centers in the history of the EB-5 program. I have the great pleasure, as always, of being joined by Rohit Turkhud. Rohit is a Member at CSG Law and an expert in EB-5 and many other areas of immigration law. Rohit, welcome.
Rohit Turkhud (00:36):
Good morning, Peter, and thank you again for having me. It is always a pleasure to help our audience understand what is happening in immigration. Great to be here.
Why H-1B Changes Matter to EB-5 Investors
Peter Calabrese (00:50):
We always try to provide timely, relevant information to our investors, prospective investors, and partners. The current immigration environment makes that especially important. A significant portion of our client base consists of H-1B holders or H-1B candidates who are considering EB-5. On September 19th, a presidential proclamation was issued that made substantial changes to the H-1B program. We want to walk through what was announced, who it affects, when it takes effect, and what practical steps H-1B holders should take now. Rohit, can you start by explaining the proclamation?
The September 19th Presidential Proclamation
Rohit Turkhud (03:02):
The September 19th proclamation came unexpectedly. It was titled “Restriction on Entry of Certain Non-Immigrant Workers,” and it was directed specifically at H-1B holders. The title alone signals the intent. Before getting into specifics, I want to caution that there are still significant unknowns. The administration issued clarifications on September 20th and 21st, which helped reduce the initial panic among employers, employees, and attorneys. But many questions remain open.
The $100,000 Filing Fee
Rohit Turkhud (04:12):
One major change we do know: a one-time filing fee of $100,000 will apply to new H-1B petitions filed on or after midnight of September 21st. This is not an annual fee. It is a one-time charge per petition. The September 20th clarification memo used the language “except for those aliens whose petitions are accompanied or supplemented by a payment of $100,000,” which suggests that for petitions filed after that date where no payment mechanism yet exists, USCIS may issue an RFE requiring the payment. The word “supplemented” in that context likely signals that process. We are still waiting for full implementation guidance.
Peter Calabrese (05:13):
Further clarifications may still be coming. The proclamation caused widespread concern and the follow-up guidance helped, but the full picture is not yet settled.
Who Is Affected: Current H-1B Holders
Rohit Turkhud (05:32):
The good news for existing H-1B holders is that the proclamation is not supposed to affect them. The September 20th clarification memo stated explicitly that the proclamation only applies prospectively to petitions that have not yet been filed, and that it does not impact the ability of any current visa holder to travel to or from the United States. That is a meaningful comfort. However, H-1B holders who have an approved petition but do not yet have a visa stamp in their passport and are planning to travel abroad to get stamped are in a more uncertain position. I would strongly urge them to consult with HR and their immigration attorney before making any travel plans, and to get those conversations documented in writing.
Travel Risks for H-1B Holders Without Visa Stamps
Rohit Turkhud (06:35):
If you travel abroad for visa stamping and the consulate does not issue the visa because of uncertainty around the $100,000 fee, you could be stranded in your home country until the matter is resolved. If your employer is unwilling or unable to wait, and your employment is terminated while you are abroad, the situation becomes significantly more complicated. You could lose your ability to re-enter on the H-1B even if the visa is eventually issued, because you no longer have the job backing the petition. There is also a risk of fraud allegations if circumstances change materially between application and stamping. The current environment demands extra caution at every step. Do not rely on informal advice from friends or colleagues, however well-intentioned. Consult professionals.
Practical Advice: Document Everything in Writing
Peter Calabrese (08:12):
If you are a current H-1B holder with travel planned, check directly with your immigration attorney and your HR department before proceeding. Verify that your specific situation is not affected before making any irreversible decisions.
Rohit Turkhud (08:34):
And conduct those conversations in writing, not just verbally. Email or written confirmation from HR and from your attorney gives you a record to fall back on. We know the situation continues to evolve. There are no guarantees. But having a documented record of the guidance you received and the steps you took is essential for your own protection.
Changing Employers on H-1B
Peter Calabrese (09:01):
For H-1B holders thinking about changing employers, what are the implications under the new proclamation?
Rohit Turkhud (09:23):
It appears that employer transfers should not be directly affected, but clarity is still needed on the definition of a “new H-1B.” Does it apply only to lottery-selected petitions, or does it extend to new employer sponsorships? Does the $100,000 fee apply to a petition filed post September 21st for a new employer, even if the employee already holds H-1B status? These are unresolved questions. Officers have discretion and may adjudicate these situations differently. Until clear guidance is issued, any H-1B holder considering a transfer should consult with an attorney before acting.
EB-5 as the Most Viable Path to Permanent Residence
Rohit Turkhud (10:15):
What I think is clear is that H-1B holders, particularly those born in India and China, need to be thinking about the path to permanent residence. EB-5 is currently the most viable option for those individuals to migrate to the United States within a reasonable timeframe.
Peter Calabrese (10:31):
Absolutely. One clarification on the proclamation: the H-1B lottery system itself has not changed yet. What has changed, and is being proposed, is significantly higher costs for employers sponsoring new H-1B petitions. The $100,000 fee dramatically raises the threshold for sponsorship.
Proposed Lottery System Changes
Rohit Turkhud (11:11):
There is also a proposed change to how the lottery works that has not yet been implemented but would be a major shift. Currently everyone gets one chance in the lottery, or two chances if they hold a U.S. master’s degree or higher. Under the proposed system, the number of chances would correspond to the wage level of the offered position. A level one entry wage would receive one lottery chance. A level four, the highest wage classification, would receive four chances. If implemented, this would take effect for the March 2026 lottery cycle, covering H-1B start dates of October 1, 2026. This would heavily favor higher-paid, more experienced workers and dramatically reduce entry-level hiring. Litigation is expected, but the timeline is uncertain. Implementation is currently projected for March to April 2026.
Impact on Entry-Level Workers and the Tech Workforce
Peter Calabrese (15:05):
Combining the $100,000 fee with wage-weighted lottery odds means employers will face strong pressure to only sponsor candidates who justify that level of spend. Entry-level hiring would be heavily discouraged. This is a fundamental shift in how the H-1B program has functioned and will have significant consequences across the technology industry and other H-1B-dependent sectors.
Potential Litigation
Rohit Turkhud (16:23):
Litigation is almost certain. The question is when and on what specific grounds. For companies filing H-1B petitions in the hundreds, the cost of litigation may be lower than the cost of paying $100,000 per petition. CSG Law has significant federal court litigation capacity on the immigration side. We are watching the situation closely. Challengers need to identify imminent harm for a court to grant relief, and since the wage-based lottery changes are not expected to take effect before March or April 2026, there may be a period of waiting before the most significant legal battles unfold.
EB-5 Concurrent Filing: How It Works for H-1B Holders
Peter Calabrese (18:10):
For H-1B holders looking at EB-5 as a path to permanent residence, the ability to file concurrently is extremely valuable. The Reform and Integrity Act of 2022 allows investors to file an I-526E petition and an I-485 adjustment of status application at the same time. This has been actively used by H-1B holders for the past several years. Rohit, can you walk through how that works and what to watch out for?
Rohit Turkhud (19:33):
It is well established that EB-5 is the go-to visa for India and China-born workers seeking a permanent path within a reasonable timeframe. The ability to file the concurrent I-485 depends on the visa bulletin published monthly by the Department of State. Specifically, as long as the letter C appears in the reserved categories for India and China, meaning the rural, high unemployment, and infrastructure set-asides, concurrent filing is available. When you file the I-485 concurrently with the I-526E, you receive an Employment Authorization Document and advance parole for travel. You can also continue to extend or transfer your H-1B during this period and remain lawfully in the United States while the process moves forward.
Peter Calabrese (19:48):
Just to clarify: Vietnam is not currently backlogged in the same way.
Rohit Turkhud (19:50):
Correct. India and China are the primary countries with backlog concerns in the EB-5 context.
The Urgency of Letter “C” and Concurrent Filing
Rohit Turkhud (20:25):
I cannot overstate the importance of filing the adjustment of status while the letter C remains in the visa bulletin for the reserved categories. The ability to file concurrently provides extraordinary protection: you maintain lawful status in the United States, you have work authorization, and you have travel flexibility. That window may not remain open indefinitely. There is a real concern that India and China could move into backlog in those reserved categories by the end of 2025 or the first quarter of 2026. No one can predict the exact timing with certainty, but the urgency is real.
Caution with Loan-Based EB-5 Financing
Rohit Turkhud (21:30):
I want to address something we are both seeing more of: investors exploring loan-based financing options to fund their EB-5 investment. I understand the appeal, especially for H-1B holders who want to move quickly and may not have the full investment amount readily available. But this requires serious scrutiny. The fact that 20 similar applications were approved does not mean the next 80 will be. Different adjudicators reach different conclusions. More importantly, USCIS retains the discretion to revisit source of funds at the I-829 stage, even years after the I-526E was approved. The fundamental question they ask is whether it is genuinely your money being invested.
Rohit Turkhud (22:35):
In immigration, my mantra is documentation, documentation, documentation. With loans, the standard needs to be caution, caution, caution. The regional center is offering you an option. The decision is yours, and so are the consequences. If the loan structure is later challenged at I-829, the burden falls on you. The early 1990s saw USCIS slow the entire EB-5 program over concerns about whether investors were investing their own money. That history is instructive.
Peter Calabrese (23:27):
The consequences will be borne by you as the investor.
Rohit Turkhud (23:30):
Exactly. The regional center may operate in complete good faith. They may offer the plan in good faith. But they cannot guarantee your individual outcome, and the EB-5 program by design requires everything to be at risk. There are no guarantees.
The I-526E and I-485 Relationship: Critical Dependency
Peter Calabrese (25:05):
To summarize what Rohit is describing: the concurrent filing is a powerful tool, and the EAD and advance parole it produces are enormously valuable. But the I-485 is entirely dependent on the I-526E. If your I-526E is not properly prepared and is denied by USCIS, your adjustment of status application is automatically denied as well. You lose the EAD, you lose the advance parole, and you may find yourself in a very difficult immigration situation. Everything depends on getting the I-526E right the first time.
Stay on H-1B Until I-526E Approval
Rohit Turkhud (26:23):
Exactly right. My strong recommendation is to continue extending your H-1B status throughout this process, at minimum until your I-526E is approved. Even after I-526E approval, there is a gap before the I-485 is adjudicated, and no one can predict how long that gap will be. Maintaining H-1B status as a parallel protection during that period is prudent. The process is not easy. Immigration was never designed to be. Protect yourself at every stage.
Working with the Right Professionals
Peter Calabrese (27:26):
Especially in this environment, the quality of your professional team matters enormously. Work with experienced immigration attorneys. Work with regional centers that genuinely care about client outcomes and understand that a good regional center invests in your success, not just your initial enrollment. Ultimately, outcomes depend significantly on the choices you make, and choosing the right professionals is one of the most important of those choices.
Rohit Turkhud (28:09):
This is not a transaction. It is a relationship. You need to be comfortable working with your attorney, your regional center, and your investment advisor for at least five to seven years. Choose accordingly.
Practical Steps for H-1B Holders Considering EB-5
Peter Calabrese (28:24):
Rohit, what are the most important practical steps for an H-1B holder who is now seriously considering EB-5 concurrent filing?
Rohit Turkhud (29:20):
First, talk to reputable regional centers and to experienced immigration attorneys. There is no harm in consulting more than one attorney. If a regional center or attorney is unwilling to answer your questions thoroughly, that tells you something about the relationship you would have with them for the next five to seven years. Do not let fees be the primary deciding factor. On an $800,000 investment, a $1,000 difference in administrative fees is not a meaningful consideration.
Source of Funds Is the Most Time-Consuming Step
Rohit Turkhud (30:18):
For investors from India or China, start your source of funds preparation early. It consistently takes longer to document and trace source of funds than to select a regional center and project. The regional center selection, at least when you are working with a firm like CanAm with a strong track record of repayments and approvals, is relatively straightforward. The source of funds documentation is where most of the time and complexity lie.
The Urgency of Concurrent Filing
Rohit Turkhud (31:15):
You can file an EB-5 petition at any time. There is no restriction on that. The limitation is whether you can also file the I-485 concurrently, and that depends on the visa bulletin. Even if the concurrent window closes, the EB-5 petition itself may still represent your fastest path to migrating to the United States. And there are other considerations, such as the age of your children, that may make urgency even more critical. Those deserve a dedicated conversation.
Closing: Balance Urgency with Caution
Peter Calabrese (32:07):
Rohit, this has been tremendously helpful. For anyone in our audience navigating the H-1B changes and looking at EB-5 as the path forward, we hope this gave you clarity and direction. Any final thoughts?
Rohit Turkhud (32:14):
Caution, caution, caution. Peter and I have only scratched the surface. Please keep in mind: it is your green card, your investment, your benefit, and your risk. The attorney and the regional center are vehicles to help you reach your destination. We are here to help in any way we can.
Peter Calabrese (33:03):
The urgency is real and warranted. We feel it in every conversation we have. But urgency at the expense of caution and sound decision making is not the right approach. Make sure you have the right information, work with the right people, and make the decision that is truly right for you. CanAm is always available, as is Rohit and his team, for anyone who wants to discuss their specific situation.
Rohit Turkhud (33:55):
Thank you so much for having me. I genuinely hope this is useful for the audience.
Peter Calabrese (34:02):
My pleasure, Rohit. Thank you as always.
Rohit Turkhud (34:05):
Thank you.
