Government Departments Offer Dueling Nonimmigrant Worker Programs

By David North on July 14, 2011

Suppose you are a manager in a multi-national corporation and you want to hire a graduate engineer from another nation. The nonimmigrant worker programs in the U.S. are so numerous, and so lightly supervised, that you can choose among as many as four different programs, in three different cabinet agencies, for your migration mechanism.

Suppose you are a principal in a K-12 school somewhere in America, and you want to bring in a teacher from, say, Peru, for two years. You can choose from two or perhaps four different visa programs to arrange for that teacher's temporary admission.

The corporation can, given the right sets of circumstances, easily use either the L-1 program if the worker is already employed at one of its overseas affiliates, or the H-1B program if that is not the case. If the corporation has a relationship with a sponsor in the State Department J-1 (exchange visitor) program, that alternative might work; similarly, if the engineer is really distinguished (having obtained patents or published technical papers or both) then there is the O-1 visa for extraordinary workers; that's within USCIS.

A penny-pinching U.S. institution with a little immigration savvy can often use this flexibility, if it so desires, to find the visa program that provides the least expense to the employer, and the least protection for both the foreign worker and for any U.S. worker who may lose a job as a result.

The sheer multiplicity of programs is an exploiter's delight.

Let's return to the employer of the teacher from Peru; the U.S. school can cause the migration of the teacher through: the H-1B worker program of the U.S. Labor Department, or one of the J-1 programs of the State Department. Or, perhaps, if one of the classes to be taught deals with, say, Aztec culture, then the employer might have an option of using one of the two cultural exchange programs run by the Department of Homeland Security, through USCIS; these are the P and Q visa programs, both dealing with cultural exchanges.

Each of these programs has different requirements, each has a different level of protection of the foreign workers (usually better in DoL programs than in the others), different terms of admission, and different levels of government supervision (ranging from minimal to none at all, with the State Department programs at the bottom of the ladder, as noted in a previous blog on the J-1 program.)

Naturally, some of these visa programs are much more used (and abused) than others. An excellent example of this comes in the two investor programs, the Treaty Investor program of State (with E-2 visas) and the Immigrant Investor program of USCIS, discussed in an earlier blog, (with EB-5 visas).

We are not dealing with level playing fields here. While the EB-5 visa program can produce green cards for the whole family after two years, it does require at least $500,000 to be placed in an investment approved by a USCIS-licensed regional center.

The State Department's rival Treaty Investor program does not provide green cards, but the visas can be renewed year after year, and both the investor and his or her spouse can work legally in the U.S., just as can the EB-5 investor and spouse. The big difference is the cash requirement.

The State Department program does not use a hard-and-fast dollar figure, and middlemen seeking to profit from brokering the E-2 visas say that the minimum dollar figure to invest can be as low as $100,000 in many cases, and other middlemen say it can be still lower. Further, the Treaty Investor can put the money where he sees fit, and does not have to deal with the regional centers.

You can guess which program is more popular. According to Tables II and XVI(B) of the 2010 Visa Office Annual Report, there were 25,500 new visas issued for the E-2 program and only 1,139 for the EB-5 program. Both numbers include the investors themselves as well as spouses and children.

The big tilt to State's program over the USCIS program is taking place despite vigorous promotion of the EB-5 program by USCIS, and no particular push by State on behalf of the E-2s.

In contrast to this huge variety of federal nonimmigrant worker programs, and their differing impacts on various parts of the economy, there is a single federal minimum wage program, which covers all companies everywhere. Such straightforward simplicity is not to be found in the visa programs.

Well-entrenched employer and open-borders interest groups work nonstop to maintain the current rules for nonimmigrant worker programs; diversity in these programs means lower costs to the bosses and higher immigration levels for the advocates, and that is just what they want.

The table below shows some of the many duplications in nonimmigrant programs.

Competing and Overlapping Foreign Worker Programs
Dominant Agencies
Department of State
Department of Labor
Highly Skilled Workers O-1, L-1 J-1 H-1B
Low Skilled Workers some F-1s, R-1s, and Q-1s J-1, notably the summer program H-2A, H-2B
Investors EB-5 * E-2 none
Cultural Exchange Q-1, P-2, P-3 J-1 none
College Professors O-1 J-1 H-1B
K-12 Teachers P-3s, and some Q-1s J-1 H-1B
College Students F-1 J-1 none

* this is the only program in the set that is for conditional entrants who can graduate to green card status if they fill the conditions (i.e., primarily the amount and terms of investment) for admission; the rest of the cells are for nonimmigrant worker programs.

Note: When the word "some" is used above it indicates that workers in these categories may be admitted but the stated purpose of the program is different from the category heading; this happens through mission creep or through individual cases of abuse. Characterizations of who is eligible under which category are by the author, and are based on agency documents.

Key to visa categories:
E-2 Treaty investors
EB-5 Immigrant investors*
F-1 College and university students
H-1B Professionals and other highly-skilled workers
H-2A Seasonal farm workers
H-2B Unskilled, non-agricultural workers
J-1 Workers in various exchange programs; J-1 has many subsets
L-1 Executives in multinational corporations
O-1 Nonimmigrants of extraordinary prominence, skills, and talent
P-2 Artists and entertainers in reciprocal cultural exchange programs (a tiny program)
P-3 Culturally unique exchange visitors, including teachers
Q-1 Participants in a cultural exchange program much like some of the J-1 programs
R-1 Religious workers