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Unsponsored immigration

Highly skilled individuals

What unsponsored immigration routes are available for highly skilled foreign nationals to seek employment in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

Non-immigrant temporary worker visa

Eligibility

Maximum duration of stay

O-1
  • Applicants must be a foreign national with an extraordinary ability or achievements in sciences, the arts, education or business, among other fields.
  • The applicant’s extraordinary ability or achievement must be demonstrated by sustained national or international acclaim.
  • Applicants must be described as “those who have risen to the very top of their field”.
  • The applicant must file an application with US Citizenship and Immigration Services (USCIS).
  • The applicant may not self-petition, but may use a US agent to file in cases traditionally involving self-employment.

 
  • Issued for three years initially, which can be extended in increments of up to one year indefinitely, as long as there is a temporary intent.

Permanent worker visa preference categories

 

 

EB-1
  • US labour market testing (Programme Electronic Review Management (PERM) labour certification) not required. There are three subcategories:
    • extraordinary ability;
    • outstanding professor/researcher; and
    • multinational executive/manager.
  • Only extraordinary ability petitions may be unsponsored.

 
  • N/A.

EB-1 Extraordinary ability

 
  • Applicants must be at the very top of their field and have objective evidence to demonstrate that they have received sustained national or international acclaim through achievements in science, the arts, business, education or athletics.
  • The criteria is similar to the O-1 requirements.
  • The applicants must be described as “those who have risen to the very top of their field of endeavour”.
  • Applicants can self-petition with USCIS (ie, no employer sponsor is needed).

 
  • N/A.

EB-2
  • There are two subcategories:
    • professionals holding an advanced degree or its equivalent; and
    • foreign nationals who have exceptional ability.
  • EB-2 subcategories generally require labour market testing (PERM labour certification) with the exception of National Interest Waiver applications which waive the labour test.

 
  • N/A.

EB-2 Advanced degree

 
  • Applicants must hold:
  • a US master’s or PhD degree or foreign equivalent; or
  • a bachelor’s degree plus five years of post-bachelor progressive experience, which is equivalent to a master’s degree.
  • The minimum requirements for the job must meet one of these two tests and the employee must possess these credentials.

 
  • N/A.

EB-2 Exceptional ability

 
  • Applicants must be able to show exceptional ability in the sciences, the arts or business.

‘Exceptional ability’ means “a degree of expertise significantly above that ordinarily encountered in the sciences, arts or business”.
  • N/A.

National interest waiver
  • Applicants must:
  • prove their intent to work in the United States in an area of substantial intrinsic merit;
  • prove that the proposed impact of their work is of a national scope; and
  • show that the benefit of their work to the national interest is greater than that of the labour market testing process (PERM labour certification).

Applicants may self-petition (ie, they do not need an employer to sponsor them) and may file their labour certification directly with USCIS, along with their Form I-140, petition for alien worker.
  • N/A.

Entrepreneurs

What unsponsored immigration routes are available for entrepreneurs seeking to establish a business in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each?

E-1 treaty trader and E-2 treaty investor non-immigrant visas are available to nationals of countrieswith which the United States maintains a treaty of commerce and navigation. Certain employees of the treaty trader or investor may also be eligible.

If the treaty trader or investor is in the United States (with a lawful non-immigrant status), he or she may file Form I-129 to request a change of status to an E-1 or E-2 classification. If the applicant is outside the United States, he or she may apply for the visa from abroad and, once approved, may then apply at a US port of entry for admission as an E-1 or E-2 non-immigrant.  

 

Non-immigrant visa

 

Eligibility

Maximum duration of stay

E-1 treaty trader
  • Applicants must carry on:
    • substantial trade (ie, a continuous flow of sizeable international trade involving numerous transactions over time). Examples of trade include the international exchange of goods, services, international banking, insurance, transportation, tourism and technology; or
    • principal trade (ie, over 50% of the total volume of international trade) between the United States and the treaty trader’s country.

 

 
  • Initially two years, which can be extended in increments of up to two years indefinitely, as long as there is a temporary intent.

E-2 treaty investor
  • Applicants must:
    • have invested or be actively in the process of investing a substantial amount of capital in a bona fide enterprise in the United States (8 CFR 214.2(e)(12)); and
    • be seeking to enter the United States solely to develop and direct the investment enterprise (ie, showing at least 50% ownership).

 
  • Same as above.

International Entrepreneurs Rule

The Obama administration published a regulation that would have allowed foreign entrepreneurs to stay in the United States temporarily to grow their start-up company if they:

  • had minimum capital investment of $250,000 or a government grant of $100,000; and
  • could demonstrate that the start-up would provide a significant public benefit through rapid growth and job creation.

The rule was set to take effect in July 2017, but it is unlikely that the regulation will take effect under the Trump administration.

Investors

What unsponsored immigration routes are available for foreign investors seeking to invest in your jurisdiction? What are the eligibility criteria, application procedures and maximum period of stay for each? 

Business investors who invest between $500,000 and $1 million in a new commercial enterprise that employs at least 10 full-time US workers may be eligible for the EB-5 employment-based visa programme.

Under the EB-5 programme, entrepreneurs (and their spouses and unmarried children under 21) are eligible to apply for a green card (permanent residence) if they:

  • make the necessary investment in a commercial enterprise in the United States (if the investment is made in a targeted employment area); and
  • plan to create or preserve 10 permanent full-time jobs for qualified US workers.

Permanent residence is conditional for two years after which an application is submitted to document that the required jobs were created or will be created.

Ancestry

Are any immigration routes open to foreign nationals based on ancestry or descent?

No.

Other routes

Are there any other unsponsored immigration routes?

The Diversity Visa rogramme allots 50,000 immigrant visas to nationals of historically low immigration rates to the United States through a random selection process. Individuals who wish to enter the pool must register online through the State Department’s Diversity Visa website. The lottery is conducted every year and selects 50,000 entrants who become eligible to apply for lawful permanent residence.

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