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ACBA
The state Bar of California
Asian American Bar Association
American Immigration Lawyers Association
ATLA
Expertise
Expertise 2021

Don’t Let Immigration Policy Clouds Dim Hopes

Anyone familiar with the San Francisco area appreciates that fog comes with the territory. For those who desire to come to the U.S., or are already here and hope to bring in family, the fog may serve as something of a metaphor for the current state of the immigration system.

With all the furor over family separations, federal efforts to reduce numbers of alleged undocumented individuals, and trade sanctions, it can be easy to feel that no one is welcome. Those with experience in immigration law, especially in support of those seeking entry from Asia, understand the feeling but also know that opportunities do still exist.

What makes things cloudy is the wide array of different visas available and trying to figure out which might best serve to achieve the objectives unique to individual situations. The best way to clear the air is to consult with a skilled attorney committed to holistic representation throughout the complicated immigration process.

Managing Expectations

As a first step toward lifting the fog on this issue, let’s acknowledge that the U.S. State Department’s processing of applications is slow. The current method of awarding some visas is so backlogged that it has prompted a lawsuit in an effort to bring about change.

For example, so-called EB-5 visas are those the U.S. issues for foreigners with substantial capital who are ready to invest here and create jobs for 10 U.S. employees. When granted, the visas can cover the investor, a spouse and two children. The backlog is so high, though, that it can take a decade or more to win approval.

Considering that child applicants age out of visa eligibility at 21, the lawsuit argues that the process serves to dissuade investment, putting the whole EB-5 program at risk.

Meanwhile, foreigners seeking to come to the U.S. to work should know about E1 and E2 visas. These are nonimmigrant visas for would-be employees and investors. To be eligible for either of them, the applicant’s home country must have a formal trade treaty in effect with the U.S. What makes them different from one another is the following:

  • E1 visa applicants must show they are prepared to facilitate substantial trade between the U.S. and their home country.
  • E2 visa applicants must also show intent to conduct international trade operations and also have a willingness to invest substantially in the U.S.

How the claims of the lawsuit over EB-5 visa processing will fare in court is impossible to say at this point, but some observers note that if the plaintiff position prevails it could provide precedent to press to make E1 and E2 visas easier to obtain as well.

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