USA Trends and Developments Contributed by: Helena M. Tetzeli, Edward Ramos and John Pratt, Kurzban Kurzban Tetzeli and Pratt
category is for non-citizens of extraordinary abil - ity at the top of their field while the EB-1B cate - gory is for outstanding professors and research - ers and the EB-1C category is for multinational executives or managers. It is worth noting that the EB-1A category allows for a self-petition, so a US employer or sponsor is not required for an application in this category. The EB-5 category should also not be over - looked. This category recently made the nation - al news when President Trump, at a press conference, suggested the programme might be replaced with a gold card programme that requires a USD5 million contribution to the US Treasury. However, the EB-5 programme is still in place. Even if Congress kills the programme and replaces it with Trump’s favoured gold card initiative, it is difficult to imagine that Congress would retroactively apply the change to non-cit - izens already in the system to deny them immi - gration benefits. To qualify for EB-5 status, a non-citizen must invest at least USD800,000 in a project that cre - ates at least ten jobs for US workers. Most EB-5 investors, however, participate in the Regional Centre Programme, which allows them to invest in an approved offering by a government-desig - nated regional centre. In most of these projects, the investment capital is loaned to developers that then repay the loan in a period ranging from three to seven years.
Crucially, investors may borrow some or all of the capital needed to make the EB-5 investment. An employer that wished to support an employ - ee in remaining lawfully in the United States may therefore be able to do so by extending a loan to the employee to make the qualifying investment. A big advantage of the EB-5 programme is that it allows for “concurrent filing” , which means an applicant need not wait for the visa petition to be approved before filing the application for adjust - ment of the status to green card status in the US. This allows an applicant to apply for a green card immediately after making the investment, thereby allowing them to remain in the United States with legal protection while their green card application remains pending. It also entitles the investor to request a temporary work permit. All other employment-based categories are sub - ject to visa backlogs, making them less attrac - tive to parolees who need a solution quickly. However, if an employer is willing to sponsor them for another category, it is worth doing so as if the prior Trump administration is any indica - tion, the litigation on parole and TPS may well extend for years, by which time the priority date may become current, enabling these applicants to move forward with their adjustment of sta - tus applications. At worst, if they are forced to leave the United States, an approved visa peti - tion would afford them the chance to come back through consular processing.
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