Business Immigration Decoded Part 2: Frequently Asked Questions Answered

Following the first installment in the “Business Immigration Decoded” series that focused on the “fast track” EB-1 category for green cards and travel guidance for foreign nationals, the second part will build upon those insights and cover the less-explored green card options, questions about the O-1 visa and the significance of an I-94 arrival/departure record.

In addition to the clarity we hope these frequently asked questions and answers provide, Fragomen professionals can help you navigate your immigration journey and comply with immigration rules with confidence.

Q: I am already being sponsored by my employer for an employment-based green card, but due to the significant retrogression of my country of birth I probably won’t receive my green card for many years! Is the EB-5 investor green card an option for expediting my wait time? Would it conflict with my existing employment-based sponsorship?

A: Yes, the EB-5 may be a viable option depending on where you are in the employment-based processing queue. The EB-5 is a visa program that allows foreign nationals to invest in the U.S. to stimulate the local economy and create U.S. jobs in exchange for a green card.

Among other requirements, the investment threshold is at least $800,000 in a Targeted Employment Area (TEA) or $1.05 million outside a TEA. The investor must prove that the investment is from a lawful source of funds. With Congress reauthorizing the EB-5 Regional Center Program through FY 2027 (see more here), the EB-5 Reform and Integrity Act of 2022 now permits the concurrent filing of the EB-5 petition and I-485 Adjustment of Status (AOS) application, provided that the investor’s priority date is current. The AOS filing also provides the added benefits of an EAD (i.e., work authorization card) and Advance Parole (i.e., travel permit) for the principal investor and their dependents. Further, under the EB-5 Reform and Integrity Act, rural projects offer priority processing and set-aside visas, which would speed up the overall application process.

Pursuing the EB-5 would not conflict with the EB-2/EB-3 employment-based sponsorship because the EB-5 is a separate path to U.S. permanent residence.

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Q: Is the EB-5 a viable green card option for F-1 students?

A: Yes, if planned properly, the EB-5 may allow international student investors to stay in the U.S. long-term after graduation and obtain work authorization and travel permits while they wait for their green cards to be approved. An effective EB-5 strategy requires reviewing the investor’s lawful source of funds, U.S. job creation requirements for the investment, and USCIS processing times and other timing considerations. Please consult with Fragomen professionals for tailored EB-5 solutions.

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Q: I have been informed that my employer is not able to file the PERM labor certification application for me in the next six months because my position is being impacted by recent company layoffs. Other than the EB-1 and EB-5 paths, what other options do I have for moving my green card process forward?

A: The EB-2 National Interest Waiver (NIW) may be an attractive alternative to the PERM for employees with an advanced degree or exceptional ability whose endeavor and employment in the U.S. would greatly benefit the country. “Advanced degree” can also be satisfied by having a bachelor’s degree plus at least five years of progressive, post-baccalaureate experience. Presenting a strong case on how the beneficiary’s accomplishments would advance a U.S. national interest is essential for a winning NIW petition. Relative to the PERM process, the NIW is attractive for the following reasons:

• The labor market test is not required for the NIW.
• The NIW enjoys a shorter overall processing time because it avoids the prevailing wage step (currently taking more than six months) with the U.S. Department of Labor; and the 45-calendar day USCIS premium processing service is also available for NIW petitions. These time-savers are helpful for establishing a priority date in the green card queue ASAP and are especially crucial for an H-1B worker who is maxing out on their visa status.
• Concurrent I-485 AOS filing with the NIW may be an option for certain employees, depending on the visa bulletin availability.
• A foreign worker may self-petition for the NIW without their employer’s involvement.

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Q: I heard about the O-1 work visa that is reserved for Persons of Extraordinary Ability. It seems very difficult to qualify. As the phrase “extraordinary ability” suggests, do I need a Nobel Prize or Oscar to qualify?

A: No! Although having a Nobel Prize or Oscar would certainly help, fortunately, a foreign national may qualify based on extraordinary ability in sciences, education, business, or athletics for the O-1A; or in arts, motion picture, or television for the O-1B by meeting at least three of the relevant criteria here.

Although the eligibility criteria may seem daunting, don’t dismiss the O-1 as a possible visa option until you give it considerable thought. The O-1 may be approvable for professionals who are in the earlier stages of their careers. Demonstrating how your abilities are extraordinary requires being creative in telling a compelling story of your accomplishments and presenting your academic and/or professional credentials in a proper context, backed by thorough documentation of your supporting evidence. We invite you to contact a Fragomen professional for a robust O-1 assessment.

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Q: I have a valid I-797 approval notice issued by USCIS and have since traveled and returned to the U.S. after the I-797 notice was issued. Regarding the I-94 that I received at the port of entry from U.S. CBP, what do I need to watch for?

A: In this scenario, generally your latest I-94 record received (available for download here) represents the “last action” taken on your immigration status. Therefore, each time that you enter the U.S., it is critical to verify the visa status and expiration date listed on your new I-94. The visa status needs to be correct because assuming you hold a work visa (e.g., H-1B), the Class of Admission on your I-94 must say “H-1B” to match the visa status listed on your I-797 approval notice. Your new I-94 should also be valid through the entire validity period previously granted for your I-797 approval notice, with a ten-day grace period added. If your passport expires before the validity end date of your I-797 approval notice, your I-94 validity will be limited by U.S. CBP to the expiration date of your passport.

Don’t overlook the importance of your I-94! Your latest I-94 dictates your ability to remain and work in the U.S. An expired I-94 could result in severe immigration consequences. Please consult with your immigration counsel as soon as possible if you notice any potential inconsistency in your I-94 vis-à-vis your I-797 approval notice.

Need to Know More?

For further information or if you have additional questions regarding the responses provided, please reach out to Senior Associate Davy Day at [email protected].

The information presented in this blog post should not be considered legal advice and should not be relied upon as such. The blog post is intended for informational purposes only. Each case is unique and requires consulting with a competent immigration attorney.

This blog was published on September 20, 2023, and due to the circumstances, there are frequent changes. To keep up to date with all the latest updates on global immigration, please subscribe to our alerts and follow us on LinkedIn, X, Facebook and Instagram.