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Immigration and the High-Skilled Worker

Many are frustrated by the statutory per-country limit on the number of employment-based immigrants who can enter the U.S. each year. High-skilled individuals come disproportionately from India and China, two very populous countries. As a result, a computer scientist from China or an engineer from India may have to wait years in a backlogged line, while a biochemist from Ireland will fall well within the statutory limit for his/her country the same year he/she applies. This, in turn, makes it difficult for U.S. businesses to retain talent and depresses the number of high-tech start-ups the country might otherwise have.

U.S. lawmakers regularly introduce bills to re-work the system, and a new attempt is underway, the Fairness for High-Skilled Immigrants Act of 2019 (H.R. 20144). In the meantime, skilled workers and entrepreneurs from backlogged countries have options including the following:

* Cap-exempt H-1B (non-immigrant) visas are for employees of certain not-for-profit and higher education institutions: they need not enter the H-1B lottery to gain status. H-1B is dual intent and can be extended as long as a permanent residence case is in process.

* O-1 (nonimmigrant) visas are for individuals who can show they are of extraordinary ability in their fields. Because this is a non-immigrant visa, adjudication standards are relatively lenient. A drawback is that you must have a sponsor; advantages, that the O-1 has no foreign residence requirement so having an approved labor certification or an immigrant petition is not a ground for denying O-1, which can be extended indefinitely.

* The L-1A and L-1B visas (non-immigrant) are for executives and specialized employees of existing companies, respectively. Drawbacks include a required period spent abroad after 7 and 5 years, respectively. An advantage is the “dual intent” nature of the visa, so the individual can apply for a green card from L-1A or L-1B status.

* EB-1A (immigrant) is for people who can show they are at the very top of their field. Depending on how the field is defined, this may be an option for an entrepreneur with accomplishment to back him or her up. No sponsor is needed, but the person must be able to show he/she will be active in the field of extraordinary ability.

* EB-2/NIW (immigrant) is an excellent choice for an entrepreneur or researcher whose work will benefit the country: no sponsor is required, and an individual may well qualify early in his or her career. However, the EB-2 category has such long backlogs for nationals of certain countries that the individual must find some strategy for remaining in the country during the wait for a visa number. Extending an H-1B or an O-1 year by year is a possibility.

In the meantime, H.R. 20144 proposes to eliminate the per-country cap. It would also build in a transition period during which temporary limits cut down backlogs for more populous countries without creating them for others. In addition, there is a provision that no one who is the beneficiary of an employment-based immigrant visa approved before the bill’s enactment shall receive a visa later than if the bill had never been enacted. Research completed by the National Foundation for American Policy indicates that 5-7 years following enactment, the backlog that existed as of the date of the bill’s enactment will have been cleared.

We hope one day to report that the bill is now law, and the long wait for Chinese and Indian nationals is over. In the meantime, please feel free to contact us to discuss your options.

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