Most H-1B professionals assume that employer sponsorship is the only way to obtain a U.S. green card; for many workers, that is the path they begin pursuing soon after starting employment in the United States.
However, the traditional employment-based green card process is often much longer than expected. While some applicants may complete the process within a few years, unfortunately many H-1B holders born in India and China face waits that can extend well beyond a decade due to employment-based visa backlogs and per-country limits.
Fortunately, one does not have to go through this process— employer sponsorship is not the only option. Alongside the traditional employment-based process, the EB-5 Immigrant Investor Program offers a separate path to permanent residence that does not depend on a sponsoring employer.
This article will explain the standard H-1B-to-green-card process, why backlogs occur, and how EB-5 may allow eligible investors to avoid the employment-based backlog and reach a green card sooner.
The Standard H-1B to Green Card Process
For most H-1B workers, the green card application process through an employer involves the following three major steps:
- PERM Labor Certification
- Form I-140 Immigrant Petition
- Form I-485 Adjustment of Status (or Consular Processing)
Although the employee meets ongoing documentation requirements throughout the process, the employer is responsible for sponsoring and filing most of the required applications. The total timeline will vary significantly. Some applicants will complete the process within several years, while others (especially those affected by visa backlogs) may wait much longer before becoming permanent residents.
Step 1: PERM Labor Certification
The first step for most EB-2 and EB-3 green card cases is the PERM Labor Certification, filed with the U.S. Department of Labor. Before filing, the employer has to conduct a recruitment process and demonstrate that there are no able, willing, qualified, and available U.S. workers for the position at the prevailing wage. This requirement is in place to protect the U.S. labor market while allowing employers to hire foreign professionals when qualified domestic workers cannot be found.
Processing times vary depending on Department of Labor workloads. Some cases may be selected for audit, which means that additional documentation will be required, and the overall timeline will be extended.
Step 2: I-140 Immigrant Petition
After the PERM application is approved, the employer will file Form I-140, Immigrant Petition for Alien Worker, with U.S. Citizenship and Immigration Services (USCIS). This petition confirms that the green card applicant, qualifies for the requested employment-based immigrant category and that the employer can pay the offered wage. Approval of the I-140 also establishes the employee’s priority date, which determines their place in line for an immigrant visa number.
Step 3: I-485 Adjustment of Status (or Consular Processing)
Once the employee’s priority date becomes current under the Department of State’s Visa Bulletin, they may apply for permanent residence.
- Applicants already inside the U.S. generally file Form I-485, Application to Register Permanent Residence or Adjust Status.
- Applicants outside of the U.S. will typically complete consular processing at a U.S. embassy or consulate abroad before they become lawful permanent residents upon entering the country.
Why the Backlog Is the Real Problem
The greatest challenge for many H-1B holders is not obtaining employer sponsorship; it is waiting for an immigrant visa number to become available. Employment-based green cards are subject to annual numerical limits, and no country may generally receive more than about 7% of the available employment-based immigrant visas each fiscal year. Because demand from countries such as India and China greatly exceeds these limits, applicants born in those countries often experience the longest waits in the EB-2 and EB-3 categories.
The Department of State’s monthly Visa Bulletin determines when applicants may move forward based on their priority date. Since cutoff dates change every month, applicants should monitor the Visa Bulletin regularly instead of relying on the fixed timelines.
What Happens While You Wait
Many H-1B workers will remain in temporary nonimmigrant visa status for years while waiting for their priority date to become current. Under the American Competitiveness in the Twenty-first Century Act (AC21), eligible H-1B workers may extend their H-1B status beyond the normal six-year limit if they meet certain eligibility requirements, such as having an approved I-140 petition or a qualifying labor certification pending for the required period.
Although these extensions allow workers to continue to work in the United States, the lengthy wait can affect major career and personal decisions. Job changes, promotions, relocations, and long-term planning often require careful coordination to avoid disrupting the green card process.
An Alternative Path: The EB-5 Investor Green Card
The EB-5 Immigrant Investor Program offers a different route to permanent residence that does not require employer sponsorship. Instead of relying on an employer to petition on the applicant’s behalf, EB-5 applicants make a qualifying investment in a new commercial enterprise that meets the program’s job creation requirements. For many applicants, the minimum qualifying investment is currently $800,000 when the enterprise is located in a Targeted Employment Area (TEA), as defined by current law.
These investment amounts are subject to inflation adjustment under the Reform and Integrity Act. The next adjustment is expected to take effect on January 1, 2027, and industry estimates project the TEA minimum will rise to approximately $935,000. Investors who file before the September 30, 2026 grandfathering deadline may be able to lock in the current amounts, so timing can materially affect how much capital is required.
The EB-5 Reform and Integrity Act of 2022 also created reserved visa categories for certain rural, high-unemployment, and infrastructure investments. At present, these reserved categories remain current for many nationalities, allowing eligible investors to avoid the lengthy employment-based visa backlogs faced by many H-1B workers. Visa availability is determined by the monthly Visa Bulletin and may change over time; some reserved categories are already showing early signs of retrogression pressure for high-demand countries such as India, so this advantage may not remain open indefinitely.
Prospective investors should also understand that EB-5 is an investment, not a guaranteed outcome. The capital must be placed “at risk” within the meaning of the program, with no guaranteed return, and there is a genuine possibility of losing some or all of the investment if the underlying project underperforms or fails to create the required jobs. In addition, EB-5 initially grants conditional permanent residence valid for two years; investors must later file Form I-829 to remove those conditions by demonstrating that the investment and the required job creation were sustained.
How Concurrent Filing Changes the Equation for H-1B Holders
One of the most significant benefits available to eligible H-1B holders is concurrent filing. When an immigrant visa is immediately available, applicants already in the United States may file their EB-5 immigrant petition—Form I-526E for investments made through a regional center, or Form I-526 for direct investments—together with Form I-485 at the same time under the EB-5 Reform and Integrity Act of 2022. This lets eligible applicants pursue permanent residence without leaving the country while their case is pending. Filing Form I-485 also allows applicants to apply for Employment Authorization Documents (EADs) and Advance Parole travel authorization while their adjustment application is pending.
For many H-1B professionals, this provides substantially greater flexibility. Rather than relying exclusively on H-1B employment authorization, eligible applicants may receive independent work authorization and permission to travel internationally while awaiting their green card decision.
Comparing the Two Paths Side by Side
The traditional employer-sponsored green card and the EB-5 Investor Program each offer a path to permanent residence, but they differ in several important ways. The standard H-1B route generally requires an employer to sponsor the application through the PERM labor certification and the I-140 petition process, making the employee’s immigration journey closely tied to their job. While the employer typically covers many of the immigration-related filing fees costs, applicants from countries with significant backlogs may wait many years before they are eligible to apply for a green card. In contrast, the EB-5 program does not require employer sponsorship. Instead, applicants make a qualifying investment—currently at least $800,000 for many Targeted Employment Area (TEA) projects, and scheduled to increase in 2027—and pursue permanent residence independently. Although EB-5 requires a substantial financial commitment and carries genuine investment risk, eligible applicants may benefit from shorter wait times depending on visa availability and, if they qualify for concurrent filing, may obtain work and travel authorization while their adjustment application is pending. Ultimately, the choice comes down to a tradeoff between time and capital. For individuals who have the financial resources to invest, EB-5 may offer greater flexibility and a shorter overall wait—largely by avoiding the priority-date backlog rather than by speeding up adjudication itself. For others, the traditional employer-sponsored process may remain the more practical option despite the potential for lengthy waits.
How FlexPath Helps H-1B Holders Evaluate Their Options
Navigating employment-based immigration can be complicated, especially for professionals facing long visa backlogs. FlexPath helps H-1B holders evaluate whether EB-5 fits into their long-term immigration strategy, including determining eligibility for concurrent filing and understanding how an investment-based approach may complement an existing H-1B status. For professionals who have the necessary capital but want to reduce dependence on employer sponsorship, FlexPath provides guidance throughout the EB-5 process.
