Category Archives: Employment-Based Green Cards

Everyone likes to think they’re something special.

But could you prove to the satisfaction of a U.S. immigration official that your abilities in the sciences, arts, education, business, or athletics, are so extraordinary that they’ve been publicly recognized, and resulted in a period of sustained national or international acclaim?

The payoff is big. Noncitizens of the U.S. who can prove this may qualify for a green card as a priority worker (EB-1A), which doesn’t even require an employer to petition for (sponsor) you.

Just satisfying the documentation requirements calls for extraordinary persistence and patience, however. Applicants need to come up with items like proof of box office success or high salary, letters of recommendation from professional peers, articles about their work published in the media or professional journals, evidence that they’ve been invited to judge others’ work, scholarly articles that they’ve written, and all-around proof that they’ve made original, unique contributions to their field.

Who actually succeeds at this? A mere two-thirds of the people who apply, unfortunately. NBC News gives us a picture of some of the successful applicants in its recent article, “To get green cards, these immigrants must prove they are extraordinary.” Naturally, NBC tried to profile some colorful characters, including a Harvard-trained scientist from India whose research into stem cells could lead to disease cures and a vintage-style burlesque performer from Canada whose “unique contributions” have helped turn this type of dance (in her description, somewhere between ballet and a striptease) into an art form.

Before you buy heels and feathers and sign up for dance classes, however, realize that “burlesque performer” is practically unheard of as a path to success in the EB-1 category. In fact, the fact that this applicant was approved is doubly impressive when you realize that the immigration service centers refuse to view or listen to electronic materials such as CDs or videos, and aren’t allowed to check websites such as YouTube. (It’s against their policy, according to an AILA/SCOPS Teleconference of March 27, 2013). I’m sure they didn’t even peek at her videos.

One of the perennially difficult things about visas to the United States (both temporary and permanent ones) is that many of the categories are not written into the law in stone, but come with expiration dates. If Congress fails to take action to renew the visa category when it sunsets, no more visa category.

That’s bad luck not only for anyone thinking of applying for the visa in question, but typically for anyone who isn’t all the way through the system by the category’s expiration date. Applicants who haven’t either adjusted or changed their status while living in the U.S. or obtained a visa from a U.S. consulate overseas and used it to enter the United States will be stopped in their tracks and refused U.S. status or entry.

In some cases, Congressional renewals seem to happen fairly regularly (if last minute), such as with the R visa for religious workers.  (After reauthorization last fall, the R visa category is now good until September 30, 2015.)

In other cases, however, particularly where the visa was meant to respond to an urgent but not necessarily long-term need, Congress may decide to let the visa category lapse. Such may be the case with the Special Immigrant Visa for Iraqi translators.

This visa (allowing U.S. permanent residence or a green card) has been around only since 2008. It authorized issuance of 5,000 immigrant visas per year through September of 2013 (the government’s fiscal year end) to Iraqis who had served the U.S. government in Iraq.

The idea was to protect Iraqis whose work on behalf of the U.S. makes them potential targets of threats and violence by people in their own country.  According to the International Rescue Committee, “an untold number have been kidnapped or killed.” The trouble is, according to the IRC, the threats have continued after the 2011 departure of U.S. troops from Iraq, and not everyone who qualifies for a visa in this category has succeeded in getting one.

Okay Congress, you’ve got six months to act . . . .

Don’t miss this recent update on Nolo’s site if you are applying for a green card in the U.S. through the procedure known as “adjustment of status,” might like to travel while awaiting your green card interview, but were afraid to leave because your accrual of unlawful presence in the U.S., might result in you being found inadmissible upon your return.

The Board of Immigration Appeals has held that departures under Advance Parole with an adjustment of status application pending do NOT trigger the unlawful presence bars. You can travel after all.

There’s more information here, under “New Ruling Allows Applicants for Adjustment of Status to Leave U.S. With Advance Parole Without Facing Time Bars Upon Return.“

As I mentioned in an earlier entry (called “Great News for F-1 and H-1B Visa Holders,”) DHS has announced plans to allow H-4 spouses to work in the U.S., during the time that the H-1B visa holder is awaiting action on an adjustment of status (green card) application, and after a “minimum time spent in the U.S.”.

Thanks to Gary Endelman and Cyrus Mehta, we have a bit more information about that “minimum time.” Their column, “Working: H-4 Spouses Get to Take a Step Forward, But Is It a Giant One?” reveals that the government is requiring that H-1B holders have already received an extension of their stay in order for the spouse to qualify for a work permit (EAD) — in practical terms, that the H-1B holder have already been in the United States for six years.

As happens so often, we can describe the immigration rules, but we can’t explain the logic behind them. As Endelman and Mehta point out, nothing in the underlying immigration laws actually prohibits H-4 spouses from working in the first place. This is all a matter of agency “interpretation” (though I’d prefer the word “overthinking”).

I’ve seen an unusual amount of media awareness lately of  how people coming to the U.S. on temporary or permanent work visas can provide both a cultural and an economic boost to this country — and how (no one should be surprised here) tough those visas can be to get.

First, in the program/magazine for “The Wild Bride,” a hot-selling show at Berkeley Rep Theatre, there was a surprisingly long discussion of what it took, visa-wise, to bring the Kneehigh Theatre group “direct from England.”

The theatre’s general manager, Karen Racanelli, “worked several late nights, poring over substantial piles of federal paperwork.” (And that was with a lawyer’s help!)

The article goes on to describe how they applied for a P-1 visa for the on-stage ensemble, meant for internationally recognized entertainers; and a P-1S visa for their directors, designers, and assistants. Any or all of those visas could have been denied if U.S. Citizenship and Immigration Services (USCIS) hadn’t been convinced that the ensemble had received a truly international level of recognition, or that a particular individual was inadmissible. (Even performers of tabloid-level fame aren’t immune from being found inadmissible — see, for example, my article on “International Celebrities Denied U.S. Entry Visas.”)

Look how hard the USCIS regulations make it to qualify for this visa, by saying that the entertainment group must have been: “recognized internationally as being outstanding in the discipline for a sustained and substantial period of time,” and that each person applying for the visa must have “had a sustained and substantial relationship with the group (ordinarily for at least 1 year) and provide[] functions integral to the performance of the group.” Gulp. Even if it’s true, what a bother to prove. (By the way, the regs are at 8 C.F.R. Section 214(p).)

Lucky for us viewers, everyone got their visas — and a good thing, because as Karen also noted, “They need their whole team together to do what they do.”

That wasn’t all for recent media mentions of visas. Angela Woodall of the Oakland Tribune recently ran an article called, “Oakland Eyes Pay-to-Play Visa Program for Ballpark, New Coliseum.” The EB-5 visa is on center stage this time, offering, as it does, an opportunity for international investors to gain a green card through a U.S. business investment of at least $1 million (or $500,000 in an economically troubled area).

Given Oakland’s need for capital, city leaders are actively looking for foreign investment for some of its big projects.

Getting an EB-5 green card is not as easy as laying down the cash, however. As the article notes, the investor receives a “conditional” green card that runs out after the first two years — and can be converted to permanent U.S. residence only if the investor meets various conditions in terms of having actually sunk the money in and created ten new U.S. jobs. A surprising number of investors are denied at this stage, and have to leave their money, and their new U.S. home, behind. For details on this visa, see these articles on “Investment-Based (EB-5) Green Cards.”