The most precious resource we all have is time.”—Steve Jobs
For laid off tech workers in the United States on nonimmigrant visas, this Steve Jobs maxim is particularly true. Section 245(k) of the Immigration and Nationality Act (“INA”) may provide more of that precious resource in the context of EB-5.
Tech Layoffs and EB-5
The year is just getting started, but mass layoffs in the tech industry are now reaching 100,000 in 2023. A significant number of tech layoffs include foreign workers on H-1B, L-1 and other nonimmigrant visas.
These laid off foreign tech workers are severely impacted: if an H-1B visa holder is laid off, for example, their legal status in the United States, and the legal status of their family members, is terminated within 60 days. This 60-day “grace period”, in theory, gives the H-1B visa holder time to either find a new sponsoring employer, change to some other nonimmigrant visa status, or pack up and leave the U.S.
Another option may be to file an EB-5 visa petition and concurrent application for adjustment of status. The EB-5 Reform and Integrity Act of 2022 (“RIA”) made EB-5 concurrent filing available to EB-5 investors living in the United States on nonimmigrant visas. A laid off tech worker could thus make an EB-5 qualifying investment of $800,000, file an I-526E visa petition, and at the same time apply for adjustment of status for themselves and their dependent family members. This provision of the RIA is a huge benefit, as it could allow a laid off tech worker to secure lawful status in the United States along with work and travel authorization independent of any sponsoring employer.
But, 60 days is a very short time for a laid off tech worker to decide where and how to invest $800,000 for EB-5. What’s more, it may take more than 60 days just to organize funds for investment, and additional time to prepare a complex I-526E petition plus adjustment of status applications for the principal investor and any dependents. INA 245(k) may solve that time constraint by giving the laid off tech worker an additional 180 days to file their concurrent EB-5 visa petition and application for adjustment of status.
Adjustment of Status and INA 245(k)
The principal route to apply for adjustment of status under the INA is pursuant to section 245(a). INA 245(a) points to other sections of the INA to include certain bars to adjustment of status, most notably sections 245(c)(2), (c)(7), and (c)(8). These sections of the INA state that an individual who has failed to maintain lawful status in the U.S., worked without authorization, or otherwise violated the terms of their visa cannot apply for adjustment of status, even if otherwise eligible.
INA 245(k) came into law in 1997, and is generally thought of as forgiving minor, short-lasting, nonimmigrant visa status violations. Prior to the passage of the RIA, 245(k) exempted all employment-based immigrant visa categories except for EB-5 from the INA 245(c)(2), (c)(7), and (c)(8) bars to adjustment of status. Thus, before the RIA, an individual with any non-EB-5 employment-based visa petition could file for adjustment of status even if they had spent up to 180 days out of status, or had worked without authorization for up to 180 days.
In 2022, the RIA not only made concurrent filing of an EB-5 petition and adjustment of status application possible, it modified INA 245(k) by including EB-5 visa petitioners among the 245(k) exemptions. The effect of that change is that today, a laid off tech worker on an H-1B visa can invoke INA 245(k) and gain an additional 180 days on top of the 60-day grace period before filing an application for adjustment of status along with an EB-5 visa petition.
An extra 180-day period is likely critical for a laid off tech worker contemplating EB-5. It gives sufficient time to analyze EB-5 investment options, organize and document source of funds, obtain medical examinations, and prepare other documents to be filed along with the adjustment of status application.
Word of Caution
While INA 245(k) provides additional time on top of any grace period, a laid off tech worker should consult with an attorney before making any decisions regarding EB-5 or their eligibility for adjustment of status. INA 245(k) does not exempt an individual from all bars to adjustment of status or the grounds of inadmissibility at section 212(a) of the INA. And, once a laid off tech worker goes past their 60-day grace period without changing to another nonimmigrant visa, leaving the country or filing an adjustment of status application, it may be very difficult to obtain immigration status in the future outside of EB-5.
The U.S. immigration system is complex and generally unforgiving, but INA 245(k) can be a rare exception to that rule. INA 245(k) can make the process of acquiring lawful permanent resident status through EB-5 easier, including for laid off tech workers who just need a little bit more time.
