Immigration is a critical component of the American economy, with employers constantly petitioning to bring employees here from abroad for particular jobs. This is especially true, for a variety of reasons, in the STEM fields (Science, Technology, Engineering, and Mathematics). Several studies released in the past few months demonstrate the extent of immigrant involvement in the economy, particularly in business startups. Immigrant founders now account for more than one-fourth of all new startups, as well as over half of startups valued at $1 billion or more. Immigrants also make up a significant portion of New Jersey entrepreneurs. Several methods of immigration are available for aspiring U.S. entrepreneurs.
The type of visa most commonly associated with the high-tech field is the H-1B visa. This is a nonimmigrant visa, meaning that it is officially only available to people who do not intend to remain in the U.S. permanently. An employer must petition for the visa on behalf of an employee. Federal law caps the total annual number of visas at 65,000, plus another 20,000 for people with advanced degrees. U.S. Citizenship and Immigration Services (USCIS) began accepting H-1B petitions for fiscal year 2016 on April 1, 2015, and it reported that the number of petitions received exceeded the annual cap six days later. For a total of 85,000 available visas, the agency reported receiving almost 233,000 petitions.
The H-1B visa is valid for three years, and it may be extended for another three years. Various provisions allow an H-1B visa holder to change jobs, or to extend their stay if they are working toward seeking permanent residence, but the overall purpose of the visa is a temporary stay. It is therefore far from ideal for someone who wants to start a new business. Employment-based (EB) immigrant visas allow a person to come to the U.S. for a job with the intention of adjusting status to that of a permanent resident. EB immigration also requires a petition filed by an employer, and it is subject to annual numerical limits. Unlike H-1B visas, however, they are far less subject to backlogs.
EB immigrant visas are divided into five preference groups. The first three groups, EB-1 through EB-3, are each allocated 28.6% of the total number of EB visas that may be issued in a given year. EB-4 and EB-5 are each allocated 7.1%.
EB-1: “Priority workers,” defined to include people who have demonstrated “extraordinary ability in the sciences, arts, education, business, or athletics,” as well as people with similar accolades in academia or multinational business.
EB-2: People with advanced professional degrees, or who have “exceptional ability in the arts, sciences, or business”—as contrasted with the “extraordinary” ability required for EB-1.
EB-3: Other professionals, skilled workers, and certain other workers.
EB-4: “Special immigrants,” a sort-of catch-all category that includes former employees of overseas U.S. consulates and others.
EB-5: Immigrant investors. This is perhaps the only visa category that specifically addresses entrepreneurship, but it sets a very high bar. This visa requires an investment of $500,000 to $1 million and the creation of at least 10 full-time jobs for U.S. workers.
Employment visa attorney Samuel C. Berger represents individuals who intend to immigrate to the New York City or Northern New Jersey areas, immigrants who have already made their homes here, and family members and employers petitioning on an immigrant’s behalf. To schedule a confidential consultation with a knowledgeable and experienced advocate for immigrants’ rights, contact us today online, at (201) 587-1500, or at (212) 380-8117.
More Blog Posts:
EB-5 Investor Visa Program Scrutinized by Financial and National Security Regulators, New York & New Jersey Immigration Lawyer Blog, September 5, 2013
Requesting Expedited Processing of an EB-5 Immigrant Investor Visa Petition, New York & New Jersey Immigration Lawyer Blog, May 15, 2013
USCIS Issues Draft of Policy Memorandum for EB-5 Visa Program, New York & New Jersey Immigration Lawyer Blog, March 21, 2013