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ARGENTINA | 20-01-2023 13:05

Threading the labyrinth

E2, EB-1A, O-1, EB-2… heart-wrenching as leaving homeland and family can be, the decision to go can be arguably the easier part. Immigration lawyer Tyler Allen details the difficulties for Argentines wishing to move to the United States.

The exodus from Argentina (with over 200 people emigrating daily in the past couple of years, according to Immigration Department figures) is often cited as an extreme symptom underlining the depth of this country’s crisis but, heart-wrenching as leaving homeland and family can be, the decision to go can be arguably the easier part.

“It is a pet peeve of mine and it drives me crazy when Argentine clients refer to US immigration cases as tramites,” immigration lawyer Tyler Allen tells the Times, quoting the legal scholar Elizabeth Hull: “With only a small degree of hyperbole, the immigration laws have been termed ‘second only to the Internal Revenue Code in complexity.’ A lawyer is often the only person who could “thread the labyrinth” to back his complaint and pointing out that even cases reaching his firm’s expert handling can miss out with many applicants “coming to us too late.” A tourist visa it is not.

So who is Tyler Allen and where and how does he work? At the tender age of 31, he is the Senior Attorney at Vivanco & Vivanco (which he describes as a Latin American law firm with its origins in Ecuador, headquarters in Miami and offices throughout Latin America, including here) for the US Immigration Department. Born in Durham, North Carolina, and married to an Argentine wife, he has been practising immigration law out of Buenos Aires for the past five years.

Within the complexity of immigration law, the E-2 Investor Visa probably offers the best access (a willingness to invest heavily in the US economy obviously unlocks some doors) and is also the one which Vivanco & Vivanco handles the most, working intensely on half a dozen monthly and presenting them in US consulates worldwide, but those lacking that kind of cash should not despair – Allen (whose legal career began at the other end of the social spectrum with asylum law) is only too happy to list other options.

The investment of a hefty sum (which Allen estimates at US$150,000 to US$250,000 on average although there is no statutory minimum) is a prime requisite for an E2 visa but not the only one. The potential investor must be the citizen of a country with an investment treaty with Washington (dating all the way back to 1857 in Argentina’s case) and must generally own at least half their business, which must be legitimate – this is not a back door for narco money-laundering. “Must show the capacity not to be marginal” is a further requisite. Despite this high bar for an E2 visa, there were 829 applications in Argentina in the first seven months of last year alone, reports Allen, citing official statistics.

An E2 visa lasts up to five years, depending on the country of origin, but there is no limit on the number of extensions if eligible. Investors may bring with them spouses and single children aged under 21 with the former permitted to work and study and the latter to study too.

An E-2 investor visa is obviously not within everybody’s reach but Allen also has some really good options for Argentines without that kind of money to move to the United States – or even without a job offer if they have a strong professional profile, expressing special enthusiasm for what are colloquially termed “Visas of Extraordinary Ability,” or Talent Visas as he likes to call them. These possibilities include the EB-1A (one of the famous “Green Cards”) and the O-1 “non-immigrant option” for those not ready to commit themselves to permanent residence in the United States.

The Talent Visa door stands wide-open for those whose “extraordinary ability” reaches the level of a Nobel Prize, a Pulitzer Prize or an Olympic medal but lesser mortals are also in with a chance if they can meet at least three of 10 listed criteria. These criteria include prizes of a lesser order, publications or other kinds of contribution, membership in professional associations with demanding standards for entry, showcased artistic work or simply earning very well in the client’s chosen field, among others. Talent can be displayed in a wide range of fields – not only in the business, scientific and academic worlds but actors, artists, athletes, models and singers among others can all try their luck.

For those who cannot accede to an EB-1A, there is also the EB-2 Green Card. This latter normally requires a job offer and either advanced qualifications or “exceptional ability” (as opposed to “extraordinary ability”). Alternatively, without a job offer, you can undertake to obtain the EB-2 by either showing advanced qualifications and an “endeavour” (usually in the business or scientific research fields) in the “national interest.” In practice, however, individuals tend to accede to the “National Interest” EB-2 by establishing their “exceptional ability,” as opposed to their advanced qualifications. 

Like the Talent Visa, EB-2 applicants will need to satisfy at least three of several criteria in order to demonstrate their “exceptional ability.” These criteria include a university degree or other qualification relating to the area of exceptional ability, at least 10 years of full-time experience (documented), a professional licence, a high salary, membership in a professional association(s) and recognition by peers or by government, professional or business entities. Some areas are more in demand than others – thus Allen fancies the chances of airline pilots since the US shortage there has been measured at 18,000.

Having established their “exceptional ability,” in order to qualify for the EB-2 without a job offer, applicants will then need to show that their “endeavour” is in the “national interest” in order to obtain a waiver of labour certification. While there is no statutory definition of the qualifications for this waiver with the United States Citizenship and Immigration Services (USCIS), there is an amorphous 2016 Board of Immigration Appeals decision known as In re Dhanasar which has defined that applicants must meet three criteria: 1) that “their proposed endeavour has both substantial merit and national importance,” 2) “that the foreign national is well positioned to advance the proposed endeavour” and that “on balance, it would be beneficial to the United States to waive the requirements of a job offer and thus of a labour certification.” These criteria seem to have been almost intentionally left vague by the authorities, leaving it up to the applicants and attorneys like Allen to present a convincing case for the merit, viability and benefit to the United States of their “endeavour” in their petition, which will not require an employer.

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Michael Soltys

Michael Soltys

Michael Soltys, who first entered the Buenos Aires Herald in 1983, held various editorial posts at the newspaper from 1990 and was the lead writer of the publication’s editorials from 1987 until 2017.

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