The immigration policy debate tends to focus on illegal immigration by low-skilled workers. As a result, talking heads and policymakers overlook the legal hurdles for skilled foreign workers to enter and work in the United States. The United States can and should welcome many more of the countless geniuses and others who can provide cultural and economic benefit to the country. Our current system provides several underutilized pathways for extraordinary individuals to live and work in the United States.
Only a tiny fraction of U.S. green cards are for extraordinary ability
There are several pathways for skilled immigrants, but none of them are particularly easy or straightforward. There is one green card application for people who are truly remarkable that allows them to reside in the United States and work without limitations. The EB-1A (Employment-based, First Preference) is the green card for noncitizens of extraordinary ability.
In 2019, only 614 were granted for new arrivals. However, 15,674 EB-1As were approved that year when counting adjustments of status—all visa holders already in the United States on a visa can file for a change—and including the additional EB-1 categories of outstanding professors, researchers, multinational executives, and managers.
While more than 16,000 granted applications may sound like a lot, EB-1As only comprise 1.5 percent of the green cards awarded in 2019. And though EB-1A wait times are generally shorter than those for other green cards, one year is considered a fast turnaround and most take longer. Any EB-1 green card gives the holder permanent residency and full work privileges unless they commit a crime or break one of the other rules that may trigger deportation.
An applicant may alternatively apply for the EB-2 National Interest Waiver. This is similar in spirit to the extraordinary ability green card, but has slightly different standards. In 2019, the United States admitted more than 1,200 EB-2 new arrivals and awarded 18,590 as adjustment of status. Eligible applicants hold an advanced degree or possess exceptional ability and show their residency is in the U.S. national interest.
How USCIS defines ‘extraordinary ability’
According to the U.S. Citizenship and Immigration Services, the criteria for eligibility for extraordinary ability for the EB-1A include:
- The person has extraordinary ability in the sciences, arts, education, business, or athletics, which has been demonstrated by sustained national or international acclaim, and whose achievements have been recognized in the field through extensive documentation.
- The person seeks to enter the United States to continue work in the area of extraordinary ability.
- The person's entry into the United States will substantially benefit the United States in the future.
There are no standard rules for what counts as benefiting the United States, but the petitioner does need to submit evidence supporting their claim and application officers may request additional information if they find the initial documents lacking. Additionally, the EB-1A requires employers to file on behalf of the individual and prove a continuous ability to pay the offered wage.
Other paths for high-skilled immigrants
The extraordinary ability green card is not easy to get, and the other options are not a walk in the park, either. There are several visas that candidates can apply for, but everybody who enters the United States on a visa has to either get their visa continually extended, get a green card through an adjustment of status, or, eventually, leave the United States and go back home.
There is a short-term visa, the O1, that allows a person to stay in the United States for up to three years and renew on a yearly basis thereafter. This visa is typically awarded to individuals who have a project lined-up that will benefit the United States, and the visa is designed to last just for the duration of the project.
If a person has in-demand skills for U.S. employers, an employer can apply for the H1-B visa for a foreign worker that has specialized knowledge. The employer must demonstrate that there are no qualified American applicants for the role. Every year, 65,000 of these are available for three times as many applicants. Many H1-B visas are awarded on a lottery, with each applicant having around a 30 percent chance of getting one, and this visa usually only lasts between one and three years. Thus, demand greatly exceeds supply. If an H1-B worker wants to stay in the United States permanently, they must file an I-140 to get an adjustment of status, and then proceed to I-485, which is the processing of the green card.
Alternatively, if an applicant has substantial personal wealth or started a profitable company, they may be able to apply for the investor’s visa, the EB-5. The applicant must invest at least $1,800,000 in the United States—or at least $900,000 in an area with high unemployment. These sums were lower, $1,000,000 and $500,000, before 2019. The EB-5 allows a person to live in the United States for two years, after which they can petition for legal permanent resident status. Ten thousand EB-5s are available every year, and every year, between one and two thousand remain unused.
How to keep geniuses in the United States
Getting a green card is the only way for a person to get legal permanent residency and work freely in the United States, without being tied to an employer or a project on a work visa, and it is a necessary step for those who want to become full U.S. citizens. Without a green card, a person's stay in the United States is temporary and contingent on their visa being renewed, or a green card being approved.
Everybody who gets legal permanent residency, no matter the pathway, has to pay the same taxes as U.S. citizens, and can be deported for committing certain crimes.
Not everybody who works in the United States wants a green card, because the green card has further tax implications. Green card holders have to pay U.S. taxes for income in any country that they make money in, which can be very costly with people who have substantial assets or income outside the United States. There is also a green card abandonment exit tax if you give up your green card after having it for a certain amount of time.
But more immigrants want green cards than are currently issued every year. Without permanent status, many immigrants face uncertainty whenever their visa is up for renewal, with the understanding they may have to leave the country if it is not.
Increasing the cap on the number of green-cards issued for high-skilled immigrants will reward foreign-born individuals who have given so much to the United States. Doing so will only marginally change the total green cards granted each year, but will substantially ease the psychological burden that these high-skilled immigrants face.
