The United States is the greatest power and the most sought after location in the immigration market. But it is always more and harder to enter the country. For example, wealthy investors also must wait for their chance; the “queue” can take up to six years for Chinese investors (with a lot of money) through the EB-5 program. But how can you enter in the USA if you are not rich, however, you are an outstanding and high-skilled professional? Jennifer G. Parser answers my questions; she is an immigration specialist who is not only a well-known immigration lawyer but an expert of the highly qualified migrants. I met her on LinkedIn, and she is among those few professionals who can show us the whole picture.
What do you think, what kind of immigrants the US needs now and which are the most sought after professions?
While the more educated a job applicant is, the more desirable the applicant is and the more visa options available, the US job market and law show a preference for STEM degree holders. STEM stands for Science, Technology, Engineering, and Math. Speaking from the perspective of an experienced immigration law practitioner with clients nation- and even worldwide and here at the Research Triangle Park and in North Carolina, both an engine of innovation in the info-tech and biotech fields, I often hear local employers saying they have trouble finding qualified US workers. Examples are computer systems analyst, chemist, biologist, software engineer, electrical engineer, chemical engineer.
The reason is that I can say there is a legal preference is that if a foreigner is here on an F-1 student visa and obtains a STEM degree in the US, he or she can stay and additional 36 months on that student visa, gaining experience with a US employer without changing visa status. A degree holder in a non-STEM topic can only stay 12 months after graduation.
The six-year H-1B visa is a visa for those holding the equivalent of a US Bachelor’s Degree and thus naturally requires a higher level of education, and is possible a route to a green card (permanent US residence).
Which are the easiest and most preferable visa types for high-skilled immigrants?
Before responding, the US immigration is a bit unusual, but the following information will help to clarify why a job offer is critical for most visa options. In most of the visa cases, the applicants are the prospective employers, known as the “petitioner,” and the job applicant is the “beneficiary” of the petition.
The H-1B visa is the route for high-skilled foreigners whose prospective employer applies for them, but there is a quota of 85,000 H-1B visas per year: 65,000 for US Bachelor Degree or foreign equivalent and 20,000 for Master’s Degree or higher. Last year, there were 236,000 applicants for those 85,000 visas, forcing the US Citizenship and Immigration Services to conduct a lottery.
Other options are the treaty trader-treaty investor visas (E visas) if that applicant has the same nationality and majority funding of a company in the US from a country with which the US has a treaty. Unlike the EB-5 – which is the investor visa green card requiring either a $500,000 or $1,000,000 investment, the amount of investment for an E-1 or E-2 is not set: but there needs to be enough of an investment to do more than just support the investor and his or her accompanying family. A comprehensive business plan is needed as part of the application. For a new venture, the E visa is usually issued for one year initially, but can be extended “forever”. The US has E visa treaties with Germany and Spain, but not to date with Hungary or Portugal unfortunately.
There are some other visa options: a J-1 or intern visa which is usually only for 18 months and not extendable or renewable; the TN visa which is part of our North American Trade Agreement with Canada and Mexico for nationals of those countries; and some quirky visas for Australian, Chileans and Singaporeans. Finally, there is the L visa for intra-company transferees already working for a foreign company that, with a US affiliate desiring to hire the transferee, is commonly owned by the US company, or the foreign entity is a majority owner of the US company (or vice versa).
Finally, President Obama signed into law a visa for entrepreneurs, called “entrepreneur parole.” On a case-by-case basis, eligible entrepreneurs with startup enterprises could get this temporary visa. These entrepreneurs must:
- Own at least a 15% of the startup and have an active and central role in its operations,
- have formed the startup in the US within the past three years; and
- prove that the startup has substantial and demonstrable potential for rapid growth and job creation, as evidenced by receiving at least $345,000 from qualified US investor(s) who have a record of successful investment, receiving at least $100,000 in awards or grants from certain government entities, or by satisfying one or both of the above criteria plus strong evidence of the startup’s potential for rapid growth and hence job creation.
How are the chances of obtaining the visa?
For the H-1B, a job offer is needed, so the applicant must get a prospective employer to file on his or her behalf. For the E treaty visas, entrepreneur parole, and even the EB-5 green card investor, the applicant is the petitioner. The stronger and more complete application, the more likelihood of success, bearing in mind that the most qualified job applicant and complete application might not be “selected” in the annual H-1B lottery.
How an immigrant should prepare for the costs?
The prospective employer normally pays the lawyer’s and government filing fees. If the prospective employee pays these, the employer is not exempt from paying specific US Department of Labor fees associated with the filing. Any amount the employee is forced to pay may not reduce the employee’s wage so that it no longer meets the median wage for that type of job in the employer’s geographic area.
Without being too specific, the H-1B filing fees can run about $1,575. Documents in foreign languages must be accompanied by a certified translation and if the degree is foreign, it must be accompanied by an evaluation as to its US degree equivalency. Also, if an individual lacks a formal degree but has practical experiences that could be the equivalent of a US degree, that evaluation must be done as well. Very badly stated, usually 3 years of increasing work experience in an individual’s field equal one year of US college. Therefore, 12 years’ practical experience might be considered equal to a US Bachelor’s Degree, but this route needs proofs and then evaluation by an accredited educational equivalency evaluation service. My legal fees preparing the actual petition usually run about $3,000 up.
What is the outstanding visa? Who is outstanding for the US? How can they prove it?
The O-1 visa is the so-called outstanding visa, renewable indefinitely, and its equivalent, the EB-1, extraordinary ability route to a green card. Both require at least 3 of the proofs listed at https://www.uscis.gov/eir/visa-guide/o-1a-extraordinary-ability-and-achievement/understanding-o-1a-requirements and https://www.uscis.gov/working-united-states/permanent-workers/employment-based-immigration-first-preference-eb-1 respectively. The O-1 visa still needs a prospective employer to file, but the EB-1 green card applicant can be the individual himself or herself.
Is it possible to get a job and visa to the US from abroad?
The petition for the visa is lodged with the US Citizenship and Immigration Services in the US, and upon approval, the job applicant makes an appointment at the local US Embassy or Consulate to get the actual visa in the passport. The only visas not approved first by the US Citizenship and Immigration Services are the E treaty visas.
Why should they not work illegally in the US?
First, of all, someone working here illegally can be deported and the punishment is severe. For an unauthorized of 6 months (or working illegally), there is a 3 year bar to re-entering the US, and for an unauthorized of one year or more, there is a 10 year bar to re-entering the US. The employer hiring someone who is not authorized also can incur substantial fines and even imprisonment.
How can you help to high skilled professionals who want to live and work in the United States of America?
Jennifer Parser is an experienced immigration lawyer whose bio and information can be found at https://www.poynerspruill.com/People/Jennifer-G.-Parser She is also on LinkedIn with over 500 followers and writes frequently on relevant immigration news. She welcomes your questions without charge.