EB-5 Regulations Don't Affect H-1B Denials; Or Do They?

USCIS announced that its new regulations for EB-5, the million dollar green card program, will be published on July 24 2019. You can see a copy of it here.

Reports indicate that Trump was undecided until the last minute about publishing the new regulations. Assuredly one reason for his tentativeness was the difficulty of justifying foreign employers to his America First supporters. 

Discussing EB-5 and million dollar investments when people are more immediately concerned with their H-1B renewals may seem irrelevant, however it’s not impossible that the H-1B workers of today are going to be the million dollar investors of tomorrow. The challenge for most is how to stay in the US until that day comes.

One of the more persistent American myths concerns the man or woman who one day has a very good idea, a vision, which then leads them to start a new business that over time ends up employing thousands. Like all other myths this one is mostly fiction. But it has been a reliable vote getter for both political parties, and although the real factors that help the ‘good idea’ become reality have not changed too much over time, what politicians pay lip service to has. 

Almost a century ago when Walt Disney tried to promote a company based on the innovative idea of synchronizing cartoons to dance in step with the music in the film’s soundtrack, he would’ve gone bankrupt with the support of A.P. Giannini, the founder of Bank of America. Similarly many tech innovators today would still be pushing pencils for Microsoft, Apple or Google had their ‘good idea’ not received life-giving injections of VC. 

Yet our politicians continue to deny the importance of a support network to innovation. They pander to the kind of folks, who left on their own couldn’t devise an escape plan out of paper bag, by praising their sense of innovation, their individualism and by assuring them that their ‘good idea’—were they to have one in the next century or two—would climb to the peaks of success. Meanwhile the requirements to avail oneself of a support network have continued to become more stringent and a support network more difficult to obtain.

Witness Bill Gates’ laments a few weeks ago that his company missed out on the mobile revolution. What was interesting in those comments is that Gates never mentioned how he would hoped to neutralize the relative innovative advantages of existing mobile operating systems. There was no doubt in his mind that if he had correctly timed his entry into the market, his company would have succeeded with its own platform—no matter how degraded or incompetent a product he presented. He hadn’t given a thought to whether Microsoft would’ve designed a better platform than Android or iOS before entering the market. Gates knew with its superior marketing support Microsoft could end up commanding a sizable chunk of the market with minimum, or nonexistent, innovative features. Arguing which platform was better, or offered more features, would come only after he had acquired a sizable marketshare. 

This is just one example of why support is not the same as innovation. Support has little to do with creativity. The talent to innovate is innate—some have it, are born with it, and some don’t. But obtaining support is almost impossible without first submitting to an objective list of qualifications. In the 1930s, when Giannini was helping Disney, no potential investor would have bothered to check how an innovator’s ability might be hindered by their immigration status. Today all do.

That’s why we decided to write about the changing regulations for millionaire green cards. There are many future millionaires among today’s H-1B visa holders. We don’t know if the laws will change to allow them to actually get permanent residence. But we continue to espouse the idea that one must do what one can in order to stay involved until “there is a cure.” Those who have the foresight to do so must look for ways to avail themselves of what support networks they can get on their side. We can recommend one.

Our subscribers have already learned how they might obtain an EAD, independent from their current employer.