Who Comes First, the Inventor or the Casino Investor?

By David North, December 21, 2012

In terms of limited green card visas, who comes first?

  • The brilliant, young inventor with a PhD from a distinguished American university or
  • The otherwise undistinguished alien who made at least half a million dollars by, for instance, running a casino?

Do we want the best and the brightest or do we want someone with half a million he is willing to invest in the U.S., assuming both are from the same country, such as China?

The answer is totally clear: let's admit the casino guy immediately, and maybe we can get around to the inventor-with-a-PhD five years from now.

My colleague Jessica Vaughan's recent blog , on the utility of country-of-origin numerical limits (which guarantee real diversity in the immigration streams) reminded me of the little known, built-in preference of the immigration law as it stands – let in the guys with money and leave the best and brightest waiting in line.

To explain how we prefer the casino moguls or other investors to the inventors requires a visit to particularly convoluted portions of the immigration law, and to how they interact with the strange priorities of the Obama administration (which is pro-casino mogul in this narrow setting.)

There are five employment-based (EB) categories in the law; EB-2 covers people with exceptional ability, such as the inventor, and, much further down the list there is category EB-5, for investors, people willing to put up $500,000 in a more or less government-screened investment.

There are numerical limits for each of these categories, about 40,000 for EB-2 principals and their family members, and about 10,000 for EB-5 investors and their family members. But if all the EB-5 visas are not used, as has been the case in recent years, those visas become available for both EB-1 workers (really outstanding ones and their families) and the EB-2s.

So every time an EB-5 visa is issued to one of these frankly minor-league investors, a visa is denied or pushed back in terms of time for the inventor types.

Currently there are no backlogs in EB-5 visas, but there are huge ones in the EB-2 category; if you are from China and qualify for EB-2 you must wait more than five years for the green card.

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Bearing all that in mind, which visa category is the administration pressing, by endless announcements and stakeholder meetings and advisory councils and eased regulations? The one for EB-5 investors, not the best and brightest in EB-1 and EB-2, as we have noted in several postings, including this one.

All of this will get much more complicated when the interaction of the country of origin limitations starts playing out in the EB-5 visa allocations, as is likely in the near future, since most of those visas go to people from Mainland China. Then the expected backlog of Chinese EB-5 investors will make the waits for the Chinese inventors in the EB-2 category even longer than they are now.

But cheer up casino people! At the moment you and your entire family and your half million are eligible for instant visas, while those bright but broke PhD colleagues of yours have to wait in long, long lines.

The sensible thing to do is to eliminate the investor visas, and the diversity visas, and many of the family visas, but that is not likely to happen soon.