The Corporate Immigration Review: USA
Introduction to the immigration framework
i Legislation and policy
US immigration policy has multiple goals. First, it reunites families by admitting immigrants whose relatives are already in the United States.2 Second, it admits foreign workers to perform labour, generally taking into consideration the availability and working conditions of US workers.3 Third, it provides a refuge for those facing persecution on account of their race, religion, nationality, membership of a particular social group or political opinion.4 Finally, it promotes diversity in the immigrant pool by randomly providing visas to immigrants from countries with low rates of immigration to the United States.5
This policy provides two pathways for admission to the United States: aliens may be admitted as immigrants on a permanent basis or as non-immigrants for a temporary period.6 Immigrants are called lawful permanent residents (LPRs) and have an immigrant visa often referred to as a green card. LPRs have full civil rights to work in the United States. Over 1 million new immigrants are admitted to the United States each year.7 Non-immigrants are admitted for a particular activity and for a finite period. Certain non-immigrants may work in the United States depending on their visa classification. In recent years, approximately 186 million non-immigrants have been admitted to the United States.8
ii The immigration authorities
US immigration laws can be found in the Immigration and Nationality Act (INA), as amended.9 The INA brought together all the nation's statutes on immigration and naturalisation, and it remains the basic body of immigration law. The INA included a national origins quota system of immigrant selection, quota-free restrictions for the western hemisphere, quota preferences for relatives and skilled persons, and security protections against criminals and subversives.
Since 1952, the INA has been amended countless times by legislation, although its structure has remained intact. Significant amendments are outlined below.
In 1965, the INA of that year abolished the national origins system and set annual limits on immigration and a per-country quota.10 By equalising immigration policies, the effect was to shift immigration from Europe to Asia and to South and Central America.
In 1986, the INA was amended again by the Immigration Reform and Control Act.11 To curtail the rising tide of illegal immigration, the law imposed civil and criminal penalties on employers who knowingly hired aliens not authorised to work and required employers to verify the identity and work eligibility of all employees through the completion of Employment Eligibility Verification Form I-9 at the time of hiring.
In the same year, the Immigration Marriage Fraud Amendments Act was passed to prevent marriages intended solely to gain immigration benefits.12 It established a two-year period of 'conditional residence' for foreign nationals who marry a US citizen, at the end of which the US citizen spouse must petition the government to remove the conditional status.
The Immigration Act of 199013 substantially changed the preference system for immigrants by establishing new categories with separate caps for employment-based immigration and family-sponsored immigrants. It removed quotas for immediate relatives and established a diversity programme for immigrants from countries with low rates of immigration. It also created a cap on H-1B and H-2B non-immigrant workers and required employers to file a labour condition application (LCA) with the US Department of Labour (DOL) regarding wages and other working conditions for H-1B workers. The law also created new non-immigrant visa categories: the O visa for persons of extraordinary ability and the P visa for certain types of entertainers.
In 1996, the Illegal Immigration Reform and Immigrant Responsibility Act (IIRIRA)14 was passed, which expanded the categories of offences for which aliens could be deported, eliminated certain waivers of deportation and established a new bar to admission, of three or 10 years, for aliens who had been unlawfully present in the United States for six months or one year, respectively.
In addition to federal immigration law, the United States has witnessed the proliferation of state and local immigration laws.15 These have emerged because of the perceived failure of the federal government to control the migration of undocumented persons to the United States or the removal of persons unlawfully in the United States. However, under the Commerce Clause of the US Constitution,16 the regulation and enforcement of immigration matters fall within the purview of the federal government, and federal courts have historically struck down state and local attempts to regulate immigration with some limited exceptions.17 For example, the Supreme Court upheld an Arizona provision that requires state law enforcement officials to determine the immigration status of anyone they stop or arrest if they have reason to suspect that the individual might be in the country illegally, but struck down all other provisions on the grounds that they were pre-empted by federal law.18
Several US agencies implement and enforce immigration law.
Through its Bureau of Consular Affairs, the US Department of State (DOS) processes immigrant and non-immigrant visa applications.19
In 2003, the Department of Homeland Security was created with separate branches to administer immigration laws:20
- US Citizenship and Immigration Services (USCIS) is the agency responsible for the processing of all immigrant and non-immigrant visa petitions and applications by aliens who are already in the United States;
- US Customs and Border Protection (USCBP) operates at the nation's borders, airports and seaports and is responsible for determining the admissibility of arriving aliens and for determining their length of stay; and
- US Immigration and Customs and Enforcement has authority to detain and remove illegal aliens and enforces the Immigration Reform and Control Act.
The DOL's Employment and Training Administration21 processes permanent employment labour certification applications (PERMs) filed by employers seeking to employ foreign workers permanently in the United States. It also processes labour condition applications filed by employers wishing to employ H-1B workers.
Finally, the US Department of Health and Human Services22 determines the admissibility of aliens on health grounds.
International treaty obligations
i Immigration benefits pursuant to treaties of friendship, commerce and navigation
The United States has entered into treaties of friendship, commerce and navigation (FCN) with 82 countries.23 Nationals of these countries may be eligible for non-immigrant E visas as traders or investors, or employees of qualifying trader or investor enterprises.
The individual or enterprise must submit an application to the US consulate in the country of their nationality to qualify the trading or investment activity. The following criteria24 must be met:
- the visa applicant must be a citizen of the treaty country;
- if applicable, the trading or investment enterprise must also be a national of the treaty country (citizens of the treaty country must own at least 50 per cent of the business);
- treaty trader applicants must show they will be in the United States solely to carry on substantial trade, which is international in scope, principally conducted between the United States and the foreign state of which the alien is a national;
- treaty investor applicants must show they have invested or are actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States (not a small amount of capital in a marginal enterprise merely to earn a living) and are seeking entry solely to develop and direct the enterprise; and
- employees of trading and investment enterprises must serve in a managerial or executive role or as employees with 'essential skills'.
E visas may be valid for up to five years and holders are admitted to the United States for two years upon each entry.25 Holders must leave the United States after termination of status, but there is no upper time limit on renewal or extension of stay.
Spouses and children under 21 are entitled to E-derivative visas. Spouses are eligible for work authorisation, incident to status upon arrival in the United States.26
ii Immigration benefits pursuant to trade agreements
Immigration benefits accrue to certain nationals under trade agreements with the United States as follows.
United States–Mexico–Canada Agreement (formerly North American Free Trade Agreement)
In 1994, the United States implemented the North American Free Trade Agreement (NAFTA) with Canada and Mexico.27 NAFTA was a historic accord governing the largest trilateral trade relationship in the world and covered trade in goods, services and investments. NAFTA facilitated the movement of US, Canadian and Mexican businesspersons across each country's border through streamlined procedures.
The United States, Canada and Mexico renegotiated NAFTA in 2018 and signed a new regional trade pact on 30 November 2018, known as the United States–Mexico–Canada Agreement (USMCA).28 The USMCA went into effect on 1 July 2020 and replaced NAFTA through a final rule effective on 6 December 2021.29 The US Trade Representative confirmed that USMCA does not require changes to US immigration laws and does not change access to visas between the three countries.30
Pursuant to USMCA, citizens of Canada and Mexico are eligible for temporary US work visas in the following categories:
- trade USMCA (TN) visa:31 the TN visa is limited to Canadian or Mexican professionals. A professional is a businessperson seeking entry to engage in a business activity at a professional level in one of 60 professions set out in Appendix 1603.D.1 to Annex 1603 of USMCA. These include medical professionals, scientists, teachers and a broad range of other general professionals such as accountants, computer systems analysts, landscape architects and social workers. The qualification requirements are specified in USMCA and generally include a baccalaureate degree in a directly related field, with some exceptions. Services must be rendered for an entity in the United States; self-employment is not permitted; and
- L-1 intracompany transfer visa and E-1 and E-2 treaty trader and investor visas:32 pursuant to USMCA, Canadian and Mexican citizens may qualify for L-1 intra-company transferee visas, meeting the same criteria as discussed in Section IV, under the L-1 visa category, or the E-1 treaty trader or E-2 treaty investor visa as previously set out under FCN treaties.
Singapore and Chile free trade agreement H-1B1
In 2004, the United States enacted free trade implementation acts relating to Singapore and Chile.33 These acts created a new H-1B1 specialty occupation visa category with an annual cap of 5,400 visas for Singaporeans and 1,400 visas for Chileans. The 6,800 quota is counted against the annual 65,000 H-1B quota, described in Section IV. The criteria for the H-1B1 visas are the same as those for the H-1B visa.
Australian E-3 specialty occupation
In 2005, the United States entered into a free trade agreement with Australia.34 As a result, the E-3 visa category became available to Australian nationals who will be employed in the United States in a 'specialty occupation'. There is an annual quota of 10,500 E-3 visas, but the quota has never been met. To qualify, the US position generally must require a specific baccalaureate or higher degree (or its equivalent) as the minimum entry-level requirement and the employee must possess such a degree or its equivalent through well-documented employment experience.
E-3 visas may be issued for up to two years. There is no limit on extensions.
Spouses and children under 21 are entitled to E-3 derivative visas. E-3 spouses are eligible for work authorisation incident to status upon arrival in the United States.35
The year in review
The year 2021 was one of significant changes, as the Biden administration replaced the Trump administration, and covid-19 restrictions eased as a result of the widespread global vaccination effort. The Biden administration rolled back several Trump era policies, but many of the backlogs across all case types continue to persist. As of mid-2020, global migration reduced by approximately 27 per cent, as a result of covid-19.36
i Impact of covid-19
The covid-19 pandemic continues to affect migration, entry and exit policies worldwide, and immigrant and non-immigrant visa processing within the United States.
Travel and consular processing
As of 28 December 2021, the US currently has no ongoing country-specific travel bans, after lifting the Omicron-related travel restrictions imposed on 26 November 2021 as a result of the Omicron covid-19 variant that affected South Africa and other African countries.37 Starting from 6 December 2021, the US has required a negative viral covid-19 test one day prior to departure, with limited exceptions for recently recovered travellers,38 and proof of full vaccination, for non-US citizens and non-immigrants.39 Consulates worldwide have re-opened under limited consular operations.40 The DOS has begun phased resumption of routine visa processing.41
Immigrant visa applications
Covid-19 bans on new immigrants from abroad has led to a surge in applicants for immigrant visas within the United States, known as adjustment of status, as described further in Section IV.42 As of February 2022, USCIS has noted an ongoing backlog of 436,666 adjustment of status applications, with approximately 27,454 cleared for the month of February 2022.43 Unfortunately, as a result of immense caseloads and backlog, approximately 80,000 employment-based immigrant visas lapsed as of 30 September 2021.44 Availability remains high in the first and second immigrant preference categories for FY2022.45 Immigrant Visa numbers have continued to progress at significant rates, with some previously retrogressed chargeabilities current.46 USCIS now requires completion of the covid-19 vaccination series on the mandatory medical evaluation for all immigrants.47
DOL PERM processing
The DOL processing timelines for PERM labour certification processes have increased substantially.48 The DOL adjudicates Prevailing Wage Determinations between five and seven months,49 and Labor Certifications, Form ETA9089, between seven and 11 months.50
USCIS response extension
Since 1 March 2020, USCIS has implemented a 60-day deadline extension on a number of processes as an accommodation to employers and individual applicants during the pandemic. The 60-day extension applies to Requests for Evidence, Notices of Intent to Deny, Notices of Intent to Revoke or Rescind, and Notices of Intent to Terminate EB-5 Regional Investment Centers.51 USCIS has also implemented a 30-day deadline extension for the filing of Form I-290B, Notice of Appeal or Motion, and Form N-336, Request for a Hearing on a Decision in Naturalization Proceedings.52 USCIS extended this flexibility for all requests and decisions up to 26 March 2022.53
Since May 2021, USCIS has suspended biometrics submission requirements for Form I-539, Application to Extend/Change Non-immigrant Status, if requesting extension of stay, or change of status to H4, L2 or E non-immigrant status, in an effort to shorten the processing times for dependents.54 This suspension applies to 17 May 2023.55 USCIS has also used its discretion to re-use biometrics for certain applications, thus reducing the need for in-person appointments.56
On 23 December 2021, the DOS announced waivers of the interview requirement for non-immigrant visas.57 Until the end of 2022, the DOS instructed consular officers to waive the in-person interview requirement for temporary workers under the H-1, H-3, H-4, L, O, P and Q visas for individuals applying in their country of nationality or residence.58 These individuals must have previously held any type of visa, have never been refused a visa, unless such refusal was overcome or waived, and have no apparent ineligibility or potential ineligibility; or first-time individual petition-based above classifications who are citizens or nationals of a country that participates in the Visa Waiver Program (VWP).59
ii Repeal of Trump-era policies
Public Charge Rule
The Biden administration withdrew ongoing court actions that challenged the 2019 Public Charge Rule, vacating the Trump-era rules. As of 17 February 2022, the DHS proposed a new rule, ensuring the 'fair and humane treatment for noncitizens requesting admission to the US'.60 Under the proposed rule, DHS will consider Supplemental Security Income (SSI); cash assistance for income maintenance under the Temporary Assistance for Needy Families programmes; state, tribal, territorial and local cash assistance for income maintenance; and long-term institutionalisation at the government's expense when determining public charge.61 The proposed rule reinforces that certain humanitarian visa applicants will be exempt from this determination.62
Immediately upon taking office in January 2021, President Biden reversed many of the discriminatory travel bans placed by the Trump administration, targeting primarily Muslim and African countries.63
Computer programmer policy memo reversed
The Biden administration reversed a 2017 policy memorandum issued under the Trump administration relating to H-1B visas for computer programmers and confirmed it should no longer apply to any pending or new requests for H-1B classification, including motions on and appeals of revocations and denials of H-1B classification.64 The reversion places into effect the 2000 Policy Memorandum, stating most computer programmers are specialty occupation positions, distinguishing positions that involve providing clients with programming analysis, custom designs, modifications or problem-solving of software as opposed to positions dealing with the entry and review of code.65
Prevailing wage requirements reversed early 2021
In October 2020, the DHS issued the 'Strengthening the H-1B Nonimmigrant Visa Classification Program' Interim Final Rule, revising the definition of 'specialty occupation'.66 Subsequently, the DOL issued the 'Strengthening Wage Protections for the Temporary and Permanent Employment of Certain Aliens in the United States' Interim Final Rule.67 On 1 December 2020, the US District Court for the Northern District of California vacated the DHS Interim Final Rule.68 On 29 June 2021, the US District Court for the Northern District of California issued an order vacating the final rule.69
H-1B selection based on higher wages delayed
A Trump-era rule to move to a selection system incentivising higher wages has since been delayed and revised to the Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program.70
Reversion to deference
The Biden administration re-implemented USCIS's longstanding policy, which was in effect from 2004 to 2017, to defer to previous agency determinations in determining extensions.71
iii Nonimmigrant visa developments
Shergill v. Mayorkas
Following litigation as a result of extended processing times of H4 and L2 derivative status, USCIS reached a settlement in November 2021, which should assist in the continuation of employment authorisation for derivative spouses.72 The policy allows for automatic extensions of work authorisations of E, L2 and H4 eligible spouses if they timely filed the work authorisation extension, and held unexpired derivative status.73 Spouses of E and L classifications have also now been recognised to have valid work authorisation incident to status.74
Due to the ongoing crisis in Ukraine, the DHS has designated Ukraine for Temporary Protected Status (TPS) for 18 months, as of 3 March 2022.75 TPS is available for Ukrainian nationals who were already in the United States as of 1 March 2022 and cannot return safely to their home country. It allows them to lawfully remain in the United States and to apply for work authorisation.76
H-1B specialty occupation visas
After failing to fill the annual H-1B visa quota for FY2022 in the first lottery round on 1 April 2021, USCIS ran two additional lotteries, which was a new development.77 The FY2023 H-1B Cap lottery registration period runs from 1 March 2022 to 18 March 2022.78 H-1B petition approval rates showed modest improvement. In FY2021, USCIS denied 2.2 per cent H-1B petitions, compared to the 7 per cent of FY2020.79 Further, 16.2 per cent petitions received an RFE, down 248 per cent from FY2020's 40.2 per cent.80 USCIS approved 86.5 per cent petitions receiving an RFE.81
L-1 intracompany transfer visas
L-1 intracompany transfer petitions continued to face scrutiny as the highest classification denied by USCIS, but with a slight improvement under the Biden administration. In FY2021, USCIS denied 20.6 per cent L1 petitions, compared to FY 2020's 25.1 per cent.82 52.3 per cent received an RFE, down from FY2020's 54.2 per cent.83 Of those receiving an RFE, USCIS approved 65.4 per cent.84
O-1 extraordinary ability visas85
On 21 January 2022, USCIS issued policy guidance for O-1 extraordinary ability petitions filed on behalf of individuals in STEM fields, and providing guidance on how USCIS determines if prospective work falls within the area of extraordinary ability or achievement.86 The policy guidance points to appendices that include examples of qualifying comparable evidence for STEM beneficiaries.87
F-1 student visas
DHS has added new STEM categories eligible for post-graduate employment authorisation extension.88 Further, F-1 students are eligible to submit applications for employment authorisation through an online filing tool to streamline processing.89
In addition to non-immigrant visas offered through the treaties described in Section II, US immigration law offers several other non-immigrant visa classifications that may be used for new hires or intra-company transferees.
For each classification, US employers must file a petition with USCIS to demonstrate eligibility.90 The petition is typically adjudicated within three to six months. After approval, the foreign worker must apply for a visa at a US consulate.91 Workers already in the United States may also be eligible for a change of status. If the petition is denied by USCIS, an appeal may be filed with USCIS's Administrative Appeals Office. Adverse decisions on visa applications by the US consul are generally non-reviewable.
Useful non-immigrant visa classifications include the following.
H-1B visas are available to specialty occupation workers.92 To qualify, the position in the United States generally must require a specific baccalaureate or higher degree (or its equivalent) as the minimum entry-level requirement; and the employee must possess such a degree or its equivalent through well-documented employment experience.
There is an annual quota of 65,000 first-time H-1B visa recipients. An additional 20,000 H-1B visas are available for graduates of US universities with master's degrees and higher. These visas are allocated in the order in which the petitions are received. Petitions are accepted on 1 April each year for the fiscal year starting on 1 October.
Spouses and children under 21 are entitled to H-4 visas. Certain H-4 spouses are eligible for employment if the primary H-1B worker is in the process of applying for permanent residence. While the Trump administration proposed a rollback on this privilege, on 25 January 2021, the proposed regulation was withdrawn.93
The O-1 visa is available to persons of extraordinary ability in the sciences, arts, education, business or athletics.94 To qualify, the foreign worker must demonstrate sustained national or international acclaim by satisfying a number of criteria listed in USCIS regulations.95
The O-1 visa may be granted for an initial period of up to three years and may be renewed in annual increments without limit.
The L-1 non-immigrant visa is available for intra-company transferees.96 To qualify, the employee must be employed by the company overseas for one full year in the past three years in an executive, managerial or specialised knowledge capacity; and the employee must be transferred to a US branch, subsidiary or affiliate of the overseas company to work in an executive, managerial or specialised knowledge capacity.
Spouses and children under 21 are entitled to L-2 derivative visas. L-2 spouses are eligible for work authorisation incident to status upon arrival in the United States.97
L-1 petitions are approved for an initial period of three years. L-1B specialised knowledge employees may obtain a two-year extension for a maximum of five years, while L-1A executives and managers may obtain extensions in two-year increments, up to a maximum of seven years.98 A specialised knowledge employee promoted to a managerial role may be eligible for a change in classification from L-1B to L-1A and a corresponding two-year extension, providing the change is made before the employee reaches four-and-a-half years in L-1 status.99
Certain employers with large offices in the United States or who sponsor a significant number of intra-company transferees each year may apply to USCIS for 'L Blanket' approval, which permits them to bypass filing individual petitions with USCIS for each transfer and instead file an L Blanket petition directly at a US consulate. To qualify as an L Blanket employer, USCIS requires evidence that an office in the United States has been doing business for at least one year; that the organisation has three or more domestic and foreign branches, subsidiaries or affiliates; and that it is sufficiently large in terms of US employees (at least 1,000) or intra-company transferees (at least 10 in the previous 12 months) or in terms of annual sales (at least US$25 million).100
For foreign employees, the path to permanent resident status follows two steps: a petition to USCIS to become a preference immigrant; and an application for an immigrant visa.
- first employment-based preference (EB-1): multinational executives and managers, aliens of extraordinary ability or outstanding professors or researchers;
- second employment-based preference (EB-2): aliens who possess an advanced degree or have exceptional ability; or
- third employment-based preference (EB-3): members of the professions possessing a bachelor's degree and skilled workers.
Employment-based immigrant visas are limited to an annual quota of 140,000 visas.103 Because demand often exceeds supply, especially in the EB-3 category, immigrant visas can be unavailable for several years.104
Application for an immigrant visa
An application for adjustment of status may be filed with USCIS by foreign nationals seeking immigrant visas and their spouses and unmarried children under the age of 21.105 Alternatively, they may apply for immigrant visas at a US consulate in the country of their nationality or most recent overseas residence.106
iii Labour market regulation
The DOL regulates the employment of foreign workers under both non-immigrant and immigrant visas. A labour market test is generally not required to sponsor a non-immigrant worker but may be required to sponsor a worker for permanent residence.
LCAs for non-immigrant H-1B and E-3 visas
Before applying for an H-1B or E-3 visa, the US employer must file an LCA with the DOL.107 The LCA requires the employer to attest that:
- the non-immigrant will be paid the required wage;
- the employment of the non-immigrant will not adversely affect the working conditions of workers similarly employed in the area of intended employment;
- as of the date of filing the LCA, there is no strike or lockout involving the position; and
- notice of the position has been provided to the bargaining representative or has been posted in a conspicuous place where the non-immigrant will be employed.
For H-1B and E-3 visas, employers must ensure they pay foreign workers the DOL's required wage for the particular occupation and region.108 The LCA attestations, data on the required wage determination and the salary for the position must be maintained in a public access file available for inspection by the public or the DOL's wage and hour inspectors.109 Wage violations may be subject to fines or disbarment from the H-1B (or E-3) programmes, or both of these sanctions.110
Labour certification for permanent residents
A labour market test is generally required to sponsor foreign workers in the EB-2 and EB-3 categories.111 Prior to filing the preference petition, an employer must apply for PERM labour certification with the DOL. To obtain a PERM labour certification approval, the employer must document the shortage of US workers who are able, willing and qualified to perform the job's duties.112 Under the PERM regulations, the employer must conduct specified recruitment activities for 60 days.113 If no qualified, willing and able US workers are identified through the recruitment efforts, the employer may proceed with the PERM labour certification application, which can be completed and submitted online to the DOL. Processing times can be six months or more. The DOL can audit the applications up to five years from the filing date. Audited cases can take over one year for review.
iv Rights and duties of sponsored employees
Non-immigrant workers must be employed in the position described in the sponsoring petition, not work for another employer and ensure they do not remain in the United States beyond the date of admission indicated on their arrival or departure record issued by USCBP. They may apply for an extension or change of visa status with USCIS before the end of their current period of admission. Overstays may bar future entry to the United States, as mandated by IIRIRA.114
Non-immigrant workers may reside and work in the United States for the sponsoring employer for the period of admission as determined by USCBP upon their entry. They may apply for social security numbers115 and be eligible for future social security payments.116 H-1B employees are entitled to receive the wage indicated in the employer's LCA filed with the DOL (see above). They may lodge a complaint with the DOL if they are not receiving the stated wage or have been 'benched' by the employer.117
If an employer terminates the employment of an H-1B or O-1 worker before the end of the approved period of validity, the employee is entitled to payment for the cost of transportation to his or her country of residence.118
LPRs generally have full civil rights to work in the United States for any employer. They have no political rights, but may apply for US naturalisation after having satisfied residence and physical presence requirements.119
Investors, skilled migrants and entrepreneurs
i Immigrant investors
Foreign nationals who invest significant sums of money in US enterprises may qualify for permanent resident status in the immigrant investor category, known as the fifth employment-based preference category (EB-5). There are two investment options within EB-5: creation of a new US enterprise or investment in a regional centre.
Creation of a new US enterprise
On 10 March 2022, Congress reauthorised the EB-5 Regional Centre Program, which had originally expired in June of 2021, with updated requirements including:120
- investments of at least US$1.05 million for standard EB-5 investments121 (or US$800,000 if in a Targeted Employment Area (TEA), which includes a rural area or an area that has experienced unemployment of at least 150 per cent of the national average122);
- creation of full-time employment for at least 10 new workers who must be direct employees of the commercial enterprise; and
- active management of the enterprise through day-to-day managerial control or policy formulation.
Investment in a regional centre
Regional centres are investment opportunities that have been pre-approved by USCIS with respect to the more stringent criteria listed above (new enterprise, job creation, targeted commercial area). Eligibility criteria include:123
- contributions to a new integrity fund of between US$10,000 and US$20,000 annually, depending on the size of the regional centre;
- audits executed by USCIS at least once every five years; and
- various securities, compliance, record keeping and administrative requirements.
The types of investments in the current 632 USCIS-approved regional centres are varied.124 Active investment is not required, therefore the foreign national may be a limited partner.
There is an annual quota of approximately 10,000 immigrant investor visas, or 7.1 per cent of the worldwide level, not less than 3,000 of which are reserved for investors in a targeted rural or high-unemployment area, and 3,000 of which are set aside for investors in regional centres.125 As of the March 2022 visa bulletin, the EB-5 category is current for all investors.126
The permanent resident process for the EB-5 category consists of two parts: the petition to be classified as an investor, and the individual applications of the petitioner and his or her spouse and any unmarried children under the age of 21 for an immigrant visa. After approval of an immigrant investor petition and the immigrant visa applications, conditional US permanent residence is granted for two years.127 At the conclusion of this period, the foreign national must demonstrate that the money has been invested and that the enterprise remains viable and continues to employ 10 workers.128 If these conditions are not satisfied, the permanent residence will be terminated.
ii Self-sponsored immigrant petitions
Most employment-based routes for permanent residence require an employer to sponsor the foreign national and conduct a labour market test. Two categories permit the foreign national to self-sponsor without the need for a labour certification:
- Extraordinary ability: individuals of extraordinary ability in the sciences, arts, education, business or athletics may apply for permanent residence without an employer sponsor in the EB-1 immigrant category.129 The criteria are comparable to those of the O-1 non-immigrant visa,130 although USCIS often imposes a higher standard of review because of the permanent immigration benefit that is to be obtained.
- National interest waiver: foreign nationals may file petitions in the EB-2 category seeking a national interest waiver (a request that PERM labour certification be waived because it is in the interests of the United States).131 Although the jobs that qualify for a national interest waiver are not defined by statute, national interest waivers may be granted to those who have exceptional ability and whose employment in the United States would be in the national interest.132 Exceptional ability is a degree of expertise that is significantly above that ordinarily encountered in the sciences, arts or business.133
A foreign national seeking a national interest waiver must meet at least three of the criteria listed in USCIS's regulations and demonstrate that the national interest would be greatly served if he or she worked permanently in the United States.134
As with the EB-5 investor, the permanent resident process for EB-1 extraordinary ability and EB-2 national interest waiver categories consists of two parts: the petition to be classified as an alien of extraordinary ability or an alien eligible for national interest waiver, and the individual applications of the petitioner, his or her spouse and any unmarried children under the age of 21 for an immigrant visa.
Outlook and conclusions
The first year of the Biden administration appears to have reverted to a more inclusive immigration agency, evidenced by the shift of USCIS's mission statement.135 The Biden administration continues to fight an uphill battle, with the current immigrant visa backlog reaching increased case processing times, delays in H-4, L-2 and E-3 dependent statuses, and Congress divided on comprehensive immigration reform. Potential litigation to force USCIS to adjudicate much needed work authorisation documents may be a short-term solution, but administrative change, either through the Administrative Procedure Act rule making or legislation overhaul, is required to make an antiquated process more streamlined. Further humanitarian efforts at the southern border remain at crisis levels.136 Similarly, as the world holds its breath for Ukraine, millions of refugees have already begun seeking shelter in nearby countries.137 Finally, as covid-19 becomes less of a player as a result of advances in vaccinations and medical technology, there is finally light at the end of the tunnel for international travel normality.
1 Stephen J O Maltby and Ellen L Poreda are partners and Bryan Young is an associate at Gibney, Anthony & Flaherty, LLP.
2 The Immigration and Nationality Act 1952 (INA), Section 203(a).
3 INA, Section 203(b).
4 INA, Sections 207 to 208.
5 INA, Section 203(c).
6 INA, Section 101(a)(15).
7 US Department of Homeland Security, Office of Immigration Statistics, '2020 Yearbook of Immigration Statistics' (2020), Table 1: https://www.dhs.gov/immigration-statistics/yearbook/2020?collection=immigration-data-and-statistics.
8 id., Table 25: https://www.dhs.gov/immigration-statistics/yearbook/2020.
9 INA, Pub. L. No. 82–414, 66 Stat. 162 (1952).
10 INA, Pub. L. No. 89–236, 79 Stat. 911 (1965).
11 Immigration Reform and Control Act, Pub. L. No. 99–603, 100 Stat. 3359 (1986).
12 Immigration Marriage Fraud Amendments, Pub. L. No. 99–639, 100 Stat. 3537 (1986).
13 Immigration Act, Pub. L. No. 101–649, 104 Stat. 4978 (1990).
14 Illegal Immigration Reform and Immigrant Responsibility Act, Pub. L. No. 104–208, 110 Stat. 3009 (1996).
15 See National Conference of State Legislatures, 2020 Immigration Report (2020), available at: https://www.ncsl.org/research/immigration/report-on-state-immigration-laws-2020.aspx.
16 US Constitution Article 1, Section 7, cl. 43.
17 Head Money Cases, 112 US 580 (1884).
18 Arizona v. United States, 567 US 339 (2012).
19 INA, Sections 221 to 222.
20 INA, Section 103.
21 INA, Section 212(a)(5)(A), (n).
22 INA Section 212(a)(1).
23 For a list of countries with FCN treaties, see 9 Foreign Affairs Manual 402.9-10, available at https://fam.state.gov/searchapps/viewer?format=html&query=E%20treaty&links=E,TREATI&url=/FAM/09FAM/09FAM040209.html#M402_9_2.
24 INA Section 101(a)(15)(E); 8 Code of Federal Regulations (CFR). Section 214.2(e).
25 8 CFR, Section 214.2(e)(19).
26 INA, Section 214(e)(2); see also USCIS, Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses, PA-2021-25, Nov. 12, 2021.
27 North American Free Trade Agreement Implementation Act, Pub. L. No. 103–182, 107 Stat. 2057 (1993).
31 INA, Section 203(e)(2); 8 CFR, Section 214.6(c).
32 8 CFR, Section 214.2(l)(17)(i).
33 United States–Chile Free Trade Agreement Implementation Act, Pub. L. No. 108–77, 117 Stat. 909 (2003); United States–Singapore Free Trade Agreement Act, Pub. L. No. 108–78, 117 Stat. 948 (2003).
34 United States–Australia Free Trade Agreement Implementation Act, Pub. L. No. 108–286, 118 Stat. 919 (2004).
35 INA, Section 214(e)(2); see also USCIS, Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses, PA-2021-25, 12 November 2021.
36 UN, Growth of International Migration slowed by 27%, or 2 Million Migrants, due to COVID-19, says UN, un.org, https://www.un.org/en/desa/growth-international-migration-slowed-27-or-2-million-migrants-due-covid-19-says-un#:~:text=COVID%2D19-,Growth%20of%20international%20migration%20slowed%20by%2027%25%2C%20or%202%20million,and%20halting%20of%20travel%20worldwide.
37 White House, A Proclamation on Revoking Proclamation 10315, 28 December 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/12/28/a-proclamation-on-revoking-proclamation-10315/.
38 DOS, New Requirements for Air Travelers to the U.S., travel.state.gov, https://travel.state.gov/content/travel/en/traveladvisories/ea/requirements-for-air-travelers-to-the-us.html.
39 White House, A Proclamation on Advancing the Safe Resumption of Global Travel during the Covid-19 Pandemic, whitehouse.gov, 25 October 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/10/25/a-proclamation-on-advancing-the-safe-resumption-of-global-travel-during-the-covid-19-pandemic/.
40 DOS, Visa Services Operating Status Update, 19 November 2021, https://travel.state.gov/content/travel/en/News/visas-news/visa-services-operating-status-update.html.
41 ibid. (noting prior processing only for NIE L-1 and H-1b visa holders).
42 DOS, Visa Bulletin for March 2022, Feb. 8, 2022, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-march-2022.html.
43 DOS, National Visa Center (NVC) Immigrant Visa Backlog Report, https://travel.state.gov/content/travel/en/us-visas/visa-information-resources/visas-backlog.html.
44 WSJ, Up to 80,000 Unused Green Cards for Workers set to Expire Friday, wsj.com, 30 September 2021, https://www.wsj.com/articles/up-to-80-000-unused-green-cards-for-workers-set-to-expire-friday-11633024602.
45 USCIS, Green Card for Employment-Based Immigrants, uscis.gov, https://www.uscis.gov/green-card/green-card-eligibility/green-card-for-employment-based-immigrants.
46 DOS, Visa Bulletin for March 2022, travel.state.gov, https://travel.state.gov/content/travel/en/legal/visa-law0/visa-bulletin/2022/visa-bulletin-for-march-2022.html.
51 USCIS, USCIS Extends Flexibility for Responding to Agency Requests, uscis.gov, 30 December 2021, https://www.uscis.gov/newsroom/alerts/uscis-extends-flexibility-for-responding-to-agency-requests-0.
54 USCIS, USCIS Temporarily Suspends Biometrics Requirement for Certain Form I-539 Applicants, USCIS.gov, 13 May 2021, https://www.uscis.gov/news/alerts/uscis-temporarily-suspends-biometrics-requirement-for-certain-form-i-539-applicants.
56 Catholic Legal Immigration Network, USCIS, cliniclegal.org, 2 February 2022, https://cliniclegal.org/covid-19/us-citizenship-and-immigration-services-uscis#:~:text=Biometrics%3A%20USCIS%20announced%20that%20it,previously%2Dsubmitted%20biometrics%20whenever%20possible.
57 DOS, Important Announcement on Waivers of the Interview Requirement for Certain Nonimmigrant Visas, travel.state.gov, https://travel.state.gov/content/travel/en/News/visas-news/important-announcement-on-waivers-of-the-interview-requirement-for-certain-nonimmigrant-visas.html.
60 Department of Homeland Security (DHS), DHS Proposes Fair and Humane Public Charge Rule, dhs.gov, 17 February 2022, https://www.dhs.gov/news/2022/02/17/dhs-proposes-fair-and-humane-public-charge-rule.
63 White House, Proclamation on Ending Discriminatory Bans on Entry to the United States, whitehouse.gov, 20 January 2021, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/01/20/proclamation-ending-discriminatory-bans-on-entry-to-the-united-states/.
64 USCIS, Rescission of 2017 Policy Memorandum PM-602-0142, uscis.gov, 3 February 2021, https://www.uscis.gov/sites/default/files/document/memos/PM-602-0142.1_RescissionOfPM-602-0142.pdf.
65 Terry Way, NSC Director, Guidance memo on H1B Computer Related Positions, uscis.gov, 22 December 2000.
66 85 FR 63918 (8 October 2020).
67 85 FR 63872 (8 October 2020).
68 JSW Chamber of Commerce of the USA et al. v. USDHS, et al., 4:20-cv-07331 (N.D. Cal. 1 December 2020).
69 Chamber of Commerce, et al. v. DHS, et al., No. 20-cv-7331 (N.D. Cal. 23 June 2021).
70 DHS, Modification or Registration Requirement for Petitioners Seeking to File Cap-Subject H-1B Petitions; Delay of Effective Date, 8 February 2021, https://public-inspection.federalregister.gov/2021-02665.pdf; See also FR, Modernizing H-1B Requirements and Oversight and Providing Flexibility in the F-1 Program, https://www.reginfo.gov/public/do/eAgendaViewRule?pubId=202110&RIN=1615-AC70.
71 White House, Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans, https://www.whitehouse.gov/briefing-room/presidential-actions/2021/02/02/executive-order-restoring-faith-in-our-legal-immigration-systems-and-strengthening-integration-and-inclusion-efforts-for-new-americans/ (2 February 2021).
72 Shergill v. Mayorkas, 21-cv-1296-RSM (15 November 2021).
73 USCIS, Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses, PA-2021-25, 12 November 2021.
75 DHS, Secretary Mayorkas Designates Ukraine for Temporary Protected Status for 18 Months, dhs.gov, 3 March 2022, https://www.dhs.gov/news/2022/03/03/secretary-mayorkas-designates-ukraine-temporary-protected-status-18-months.
77 USCIS, USCIS Conducts Third Random Selection from Previously Submitted FY2022 H-1B Cap Registrations, uscis.gov, 19 November 2021, https://www.uscis.gov/newsroom/alerts/uscis-conducts-third-random-selection-from-previously-submitted-fy-2022-h-1b-cap-registrations.
78 USCIS, FY 2023 H-1B Cap Initial Registration Period Opens on March 1, uscis.gov, 28 January 2022, https://www.uscis.gov/newsroom/alerts/fy-2023-h-1b-cap-initial-registration-period-opens-on-march-1.
79 USCIS, I-129 Quarterly Request for Evidence FY 2015 FY2021 Q4, uscis.gov, https://www.uscis.gov/sites/default/files/document/data/I129_Quarterly_Request_for_Evidence_FY2015_FY2021_Q4.pdf.
86 USCIS, Policy Alert: O-1 Nonimmigrant Status for Persons of Extraordinary Ability or Achievement, 21 January 2022.
87 USCIS, Chapter 4 – O-1 Beneficiaries, Appendices, uscis.gov, https://www.uscis.gov/policy-manual/volume-2-part-m-chapter-4#app-footnotelink-304.
88 87 FR 3317 (21 January 2022) (noting addition of Bioenergy, Forestry, Forest Resources Production and Management, Human-Centered Technology Design, Cloud Computing, Anthrozoology, Climate Science, Earth Systems Science, Economics and Computer Science, Environmental Geosciences, Geobiology, Geography and Environmental Studies, Mathematical Economics, Mathematics and Atmospheric/Oceanic Science, Data Science, Data Analytics, Business Analytics, Data Visualization, Financial Analytics, Industrial and Organizational Psychology, and Research Methodology and Quantitative Methods)
89 USCIS, FY 2021 Accomplishments, uscis.gov, 16 December 2021, https://www.uscis.gov/newsroom/news-releases/uscis-announces-fy-2021-accomplishments.
90 INA, Section 214(c)(1).
91 INA, Section 212(a)(7)(B).
92 INA, Sections 101(a)(15)(H), 214(i)(1).
94 INA, Section 101(a)(15)(O); 8 CFR, Section 214.2(o)(1)(i).
95 8 CFR, Section 214.2(o)(3)(iii).
96 INA, Section 101 (a)(15)(L); 8 CFR, Section 214.2(l)(1)(i).
97 INA, Section 214(e)(2); see also USCIS, Employment Authorization for Certain H-4, E, and L Nonimmigrant Dependent Spouses, PA-2021-25, 12 November 2021.
98 8 CFR, Section 214.2(l)(12).
99 8 CFR, Section 214.2(l)(15)(ii).
100 INA, Section 214(c)(2)(A); 8 CFR, Section 214.2(l)(4)(i).
101 INA, Section 204(a).
102 INA, Section 203(b); 8 CFR, Section 204.5.
103 INA, Section 201(d).
104 INA, Section 203(b), (e); see US Department of State, Visa Bulletin (April 2011), www.travel.state.gov/visa/bulletin/bulletin_5368.html.
105 INA, Section 245.
106 22 CFR, Section 42.61(a).
107 INA, Section 212(n)(1); INA, Section 212(t)(1); 20 CFR, Section 655.730(d).
108 INA, Section 212(n)(1)(A), (t)(1)(A).
109 20 CFR, Section 655.760.
110 INA, Section 212(n)(2)(C),(t)(3)(C).
111 INA, Section 212(a)(5)(A).
112 20 CFR, Section 656.10.
113 20 CFR, Section 656.17(e).
114 INA, Section 212(a)(9)(B)(i).
116 Social Security Protection Act, Pub. L. No. 108-203, 118 Stat. 493 (2004).
117 8 CFR, Sections 655.731, 665.710.
118 INA, Section 214(c)(5).
119 INA, Section 316.
120 Consolidated Appropriations Act, H.R. 2471, 117th Cong. §102 (2022). https://www.congress.gov/bill/117th-congress/house-bill/2471.
123 id. at §103.
127 8 CFR, Section 204.6(l).
128 8 CFR, Section 216.6.
129 INA, Section 203(b)(1).
130 INA, Section 101(a)(15)(o).
131 INA, Section 203(b)(2)(A) and (B).
132 8 CFR, Section 204.5(k)4)(ii).
133 8 CFR, Section 204.5(k)(2).
134 8 CFR, Section 204.5(k)(3); Matter of New York State Dep't of Transp., 22 I&N December 215 (Comm'r 1998).
135 USCIS, USCIS Announces New Agency Mission Statement, uscis.gov, 9 February 2022, https://www.uscis.gov/newsroom/news-releases/uscis-announces-new-agency-mission-statement.
136 Pew Research Center, What's Happening at the U.S.–Mexico Border in 7 Charts, pewresearch.org, 9 November 2021, https://www.pewresearch.org/fact-tank/2021/11/09/whats-happening-at-the-u-s-mexico-border-in-7-charts/.
137 France24, As it Happened: Over a Million Refugees from Ukrain have Crossed into Poland, say Authorities, 5 March 2022, https://www.france24.com/en/europe/20220305-live-russia-continues-its-full-scale-attack-on-ukraine-s-mariupol-residents-trapped.