The United States immigration framework is layered and complex. Many would argue that it is problematic, but again, the purpose of this article is not to lodge complaints with USCIS or stir-up a revolution against the Code of Federal Regulations. Rather, what emerges from these remarkably dense and painstakingly granular legal regulations are the core ingredients that compose a novel immigration pathway for global talent.
Alongside successful GEIR initiatives, a sharp distinction between what can be accomplished for foreign national Founders versus global talent seeking live and work for a U.S. employer emerges. While GEIR continues to provide innovative solutions for those seeking to launch a business in the United States, it does not address the existing gap of U.S. employers seeking to hire and retain foreign national talent. As emphasized, the most common visa pathway into the United States for highly skilled professionals is the H-1B cap-subject visa, and outlook for the 2024 “H-1B lottery season” is discouraging for both employers seeking to hire top foreign national talent, and employees ready to work in the United States.
Recognizing this need for an alternative immigration solution for U.S. employers to fill foreign national hiring demands, progressive foundations emerged within the last five-years. The first to venture into this novel space is a nonprofit entity, Open Avenues Foundation. By taking the H-1B cap exemption model of GEIR to new levels, the Open Avenues mission statement consists of “building career pathways for everyone, no matter where they are from.”
"We achieve this by offering a unique H-1B cap exempt solution that enables foreign national innovators, experts and entrepreneurs from around the world to work in the United States,” explains Danielle Goldman, Founder of Open Avenues.
Through a Global Talent Fellowship program (now known as The Build Fellowship), Open Avenues builds and manages custom-tailored Fellowship programs that enable foreign talent to teach underrepresented U.S. students in STEM and business fields. The foreign talent contributions to student’s education provides them with a cap-exempt H-1B visa, so their employers can retain them, ultimately bolstering the U.S. workforce.
© 2024, Open Avenues Foundation
Since its inception, Open Avenues has welcomed more than 200 Fellows into its program with a 99% success rate for H-1B cap-exempt filings.
“Each year we see an increase in demand for this type of solution,” states Brendan Lind, Co-Founder of The Build Fellowship. “By working closely with immigration lawyers, employers, and founders throughout the United States, we’re able to raise awareness for this fully-compliant immigration pathway.”
And compliance is key.
Immigration pathways are held to the highest of standards, and USCIS has had their fair share of audits reviewing our model. “We’ve had officers knock on our door, and visit our Fellows,” explains Danielle Goldman, Founder and CEO of The Build Fellowship. “While this is certainly an intimidating moment for anyone, I’m actually proud to present what we’ve accomplished. The output from our fellowship programming is real and measurable, and when a USCIS officer completes their formal review it feels good to know we made a positive impression.”
Once accepted into the Build Fellowship, the actual Fellow will work part-time, typically a minimum of 5-hours per week, for the respective nonprofit organization. This contractual obligation consists of a mentorship program that is built uniquely for each Fellow and harnesses their individual skillset. Underlying this programming is one of the pillars of the overall Build Fellowship mission – to train the future workforce of America. This is executed through strategic partnerships with Universities nationwide, whereby the Global Talent Fellow dedicates their time to an array of curated mentorship activities, such micro internships, 1-on-1 training, webinars and peer review sessions with students.
Notably, there are a myriad of moving parts with this kind of cap-exempt fellowship model consisting of a diverse array of stakeholders: Universities, nonprofit organizations, U.S. employers, foreign national talent, immigration practitioners and government authorities. In many ways, it is an aggregation of components mirroring the complexity of U.S. immigration regulations. Therefore, it is no wonder that U.S. immigration officials within USCIS and at Consular posts blink twice – it’s something unprecedented.
While this model was similar to the GEIR predecessor, there is one magical legislative “add-on”. With a mission-driven approach for filling highly-skilled labor market needs in the United States, organizations like the Open Avenues and The Build Foundation leverage yet another critical gear in the U.S. immigration framework: Concurrent H-1B Employment.
Concurrent H-1B Employment in a Cap-Exempt Model
The first immigration procedure in our cap exemption model is to obtain a H-1B cap-exempt visa. Yet, simply possessing this visa status does not enable an individual to work for any employer in the United States. In fact, the H-1B cap exempt visa status is anchored to the nonprofit organization for whom the applicant is working for, albeit on a part-time basis.
It is the second step of this immigration process – the H-1B Concurrent filing – that provides the legally compliant basis for which an individual can commence authorized work for a U.S. employer. This language is contained within the same breath of 8 § CFR 214.2 “Special requirements for admission, extension, and maintenance of status” referenced throughout this article. Specifically, we magnify our focus on the language contained in 8 C.F.R. § 214.2(h)(8)(ii)(F)(6):
(6) Concurrent H–1B employment in a cap-subject position of an alien that qualifies for an exemption under section 214(g)(5)(A) or (B) of the Act shall not subject the alien to the numerical limitations in section 214(g)(1)(A) of the Act. When petitioning for concurrent cap-subject H–1B employment, the petitioner must demonstrate that the H–1B beneficiary is employed in valid H–1B status under a cap exemption under section 214(g)(5)(A) or (B) of the Act, the beneficiary's employment with the cap-exempt employer is expected to continue after the new cap-subject petition is approved, and the beneficiary can reasonably and concurrently perform the work described in each employer's respective positions.
In practice, upon approval of the H-1B cap-exempt petition, the U.S. employer can effectively file the Concurrent H-1B application. Similar to the original H-1B cap-exempt filing, this can be done on a rolling basis. Furthermore, H-1B non-immigrant government filing fees from the original cap-exempt petition will carry over and be applied to the concurrent filing.
In a perfect world, with no delays in administrative processing, a qualified and highly-skilled employee would be working for a U.S. employer within 3 months of starting the entire cap-exemption visa process. Compared to alternatives available, this has been recognized by a diverse range of employers as an attractive immigration solution for hiring and retaining top-talent.
Yet, it is also an imperfect solution. As the regulations suggest, the applicant is anchored to the H-1B cap-exempt visa. In other words, they cannot simply cease their contractual obligations as a Fellow with the nonprofit organization and work freely for a U.S. employer. This would require a visa “exit-strategy” and astute immigration practitioners will recognize this – thus forming the basis for more long-term immigration planning.
And such is the nature of this innovative solution. Imperfect, yes, but fully-compliant and mission-driven.
Closing Thoughts: The Future of the Innovation Economy in the United States
The immigration solutions discussed throughout this article have impacted a diverse range of individuals and companies throughout the United States. Many have advanced the STEM-based speciality occupations and represent cutting-edge industry sectors: biotechnology, medical-research, artificial intelligence, nanotechnology, and chemical engineering, to name a few. In many ways, the innovative immigration pathways provided by the H-1B cap exemption model is a reflection of whom it seeks to serve.
The United States is facing an ever-challenging global landscape in the race for talent. While the essence of “talent migration” is not a new concept, it is arguably something that has evolved faster than any other form of migration pattern – including climate migration. This is no surprise, given that the pursuit of economic stability, prosperity and professional success are endeavors unique to each individual.
Indeed, we live in a world where borders are becoming less restrictive for purposes of optimizing one's talent. The rise of remote work and technologies enabling it. The emergence of talent-friendly immigration pathways, attractive fiscal incentives, low cost of living and high quality of living options are unprecedented. And it won’t, nor should it cease to progress in this direction.
While we are still far from achieving a kind of global meritocracy – where individual talent can truly rise above unnecessary and burdensome bureaucratic or geopolitical restrictions – the world is trending in this direction. If the United States seeks to continue its legacy of being fertile soil for the American dream, it must remain awake as an active participant, willing to evolve within this greater global conversation. As we’ve seen throughout this article, although complex, we maintain the legislative ingredients to lead the way.
