States of play

The children of many high-net-worth (HNW) families choose to study at US universities on student visas and, after graduation, these children often wish to stay in the US to start their professional careers. Most of these international students hope to obtain an H-1B visa once their post-graduation student work authorisation expires to allow them to work in the US, as the H-1B is a professional visa for positions that require at least a bachelor’s degree or equivalent in a relevant field.

However, as demand for H-1B visas in the US reached record levels in 2023, with an approximate 25 per cent selection rate in the H-1B cap lottery, there are a number of other strategies and options for international students who have not been selected in the lottery.

The author recommends that advisors to HNW families consider the contingency options described below.

Temporary work visa options

E-1 Treaty Trader/E-2 Treaty Investor Visa

The E Visa category is available to individuals who engage in trade or investment under the terms of a treaty of commerce and navigation between the US and the individual’s country. These treaties exist between the US and approximately 80 countries. The company must be at least 50 per cent owned by nationals of the treaty country and the visa applicant must hold the same nationality.

The E visa affords extensive flexibility as it may be used across a wide range of companies. For example, the visa may be used for a start-up company formed and owned by an individual. At the other end of the spectrum, it can be leveraged by a large company that has majority ownership that matches the nationality of the visa applicant.

O-1 Extraordinary Ability Visa

The O-1 visa is reserved for individuals of extraordinary ability who have risen to the top of their field of endeavour. The applicant must have fulfilled at least three of the following criteria, having:

• had critical roles for distinguished organisations;
• received national/international awards;
• published professional articles;
• received media attention;
• commanded a high salary compared to peers in the industry;
• made original contributions of major significance;
• been a member of organisations that require high achievement by their members; and/or
• judged the work of others in the field.

Although this would be a challenging standard for a university graduate to meet, an international student graduating with a master’s or doctoral degree may be able to qualify for the O-1 visa based on their research and publications during graduate-level studies.

Citizenship-based work visas

Additionally, there are various work visa options based on citizenship, as described below:

• E-3 Professional Specialty Visa for Australians: The E-3 visa is available to Australians who will work in a professional role that will require at least a bachelor’s degree, and the applicant must have a related degree or equivalent.
• TN Visa for Canadian and Mexican Nationals: The TN visa is an option for Canadians and Mexicans in certain occupations, including engineers, lawyers, computer systems analysts and economists. The applicant must generally hold a relevant degree.
• H-1B1 Visa for Professionals from Chile and Singapore: Like the H-1B visa, the H-1B1 visa is for professional positions that require at least a bachelor’s degree and, similar to the above, the applicant generally must hold a relevant degree or equivalent.

As such, there are many work visa options available to international students, even if not selected in the H-1B cap lottery.

Permanent residence options: pathways to the green card

The lack of H-1B visas has presented an opportunity to reconsider visa pathways and strategies, particularly as there are some options to go directly from a student visa to permanent residence (i.e., green card status). Therefore, international students may be able to achieve their goal of remaining in the US by applying directly for a green card from their student visa status. The most common options are outlined below.

EB-5 Immigrant Investor Program

The EB-5 Immigrant Investor category was created to stimulate the US economy through job creation and capital investment by foreign investors. All EB-5 investors must invest in a new commercial enterprise, which is any for-profit activity formed for the ongoing conduct of lawful business. Additionally, the EB-5 category requires that the investor create or preserve at least ten full-time jobs for qualifying US workers.

There is a capital investment requirement associated with the EB-5 category and the investment must be at risk during the investment period. The required minimum capital investment is USD800,000 for a targeted employment area (TEA) or USD1.05 million for non-TEA projects. A TEA is a rural area or an area with high unemployment rates (at least 150 per cent above the national average).

If an EB-5 applicant invests in a TEA, it may be possible to file the EB-5 petition concurrently with an Adjustment of Status (green card) application. This means that an international student could change directly from student visa status to permanent resident status from within the US. Also, an Adjustment of Status application can be accompanied by employment authorisation and Advance Parole travel applications to allow for the green card applicant to work and travel while the application is pending.

Upon approval of the EB-5 petition, the individual will receive a conditional green card valid for two years. These conditions may be removed after the two-year period, so long as the job creation requirements and capital investment requirements have been met.

National interest waiver

The national interest waiver (NIW) is another fast-track green card option that may be available to international students. By way of background, the current administration has signalled it is prioritising immigration options for individuals with education and/or experience in science, technology, engineering or maths (STEM) fields.

Many employers are exploring NIW petitions for STEM-based positions and it is also possible for an individual to directly file (self-petition) for an NIW petition.

In order to qualify for an NIW petition, the applicant must demonstrate:

• the proposed endeavour has both substantial merit and national importance;
• they are well-positioned to advance the proposed endeavour; and
• on balance, it would be beneficial to the US to waive labour certification.

In addition, the applicant must have at least a master’s degree or a bachelor’s degree and five years of experience. Alternatively, the applicant must show exceptional ability. NIW petitions may be filed under premium processing, where the US Citizenship and Immigration Services review the filing within 45 calendar days. Also, it may be possible to concurrently file an NIW petition with an Adjustment of Status (green card) application. As described above, this means that an international student could change directly from student visa status to permanent resident status from within the US and simultaneously file work and travel authorisation applications.

Marriage-based petition

If an individual marries a US citizen, the couple may file a marriage-based green card application. The marriage-based green card process is initiated by filing a Petition for an Immediate Relative, together with the Adjustment of Status (green card), employment authorisation and Advance Parole travel applications, as described above.

The marriage-based petition must include evidence of the bona fide marriage, such as:

• joint ownership or leasing of property;
• joint bank/investment/credit card accounts;
• joint insurance;
• children born to the couple;
• photos of the couple; and/or
• evidence of travel the couple has undertaken together.

The couple will have an interview with an immigration officer, who will review the application and the bona fides of the marriage. Upon approval, if the couple has been married for less than two years, the applicant will receive a conditional two-year green card. The couple must apply to remove the conditions before the two-year green card expires.

Conclusion

Although the lack of H-1B visa numbers poses a challenge, HNW families with children studying in the US should not despair. There are a variety of strategies they can pursue to remain temporarily or permanently in the US.

Does the family want to make an investment? If so, the E-2 investor visa would make a suitable temporary visa option for a start-up company, or the EB-5 investor visa would accommodate a pathway to a green card. If the student has a master’s or doctoral degree with associated research and publications, then the O-1 extraordinary ability temporary work visa or the NIW permanent resident petition may be options. Finally, other options may be available based on the student’s citizenship and/or family relationships.