The Challenges of the Legal Immigration Process

Coming to America has its legal obstacles

By Mary Pilon | Reviewed by Canaan Suitt, J.D. | Last updated on December 21, 2023 Featuring practical insights from contributing attorneys Anastasia Tonello, Tsui H. Yee and Dana A. DiRaimondo

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We’ve been talking about immigration seemingly forever, but generally of the illegal variety. So what about legal immigration—professionals coming to the U.S. to work and possibly live? Surely that’s going OK. Nope. “It comes as a big shock to a lot of companies and startups that it can be so difficult to come or stay here,” says Anastasia Tonello, with Ulmer & Berne in New York City.

Silicon Valley leaders have lobbied for years to hire more highly skilled immigrants for their own firms and also to give foreign entrepreneurs the opportunity to establish American-based businesses. But, says Tonello, there was “a complete abandonment of trying to get things done in Congress” on immigration during President Obama’s administration. Problems persisted through President Trump’s administration, which also saw significant increases in immigration enforcement against undocumented noncitizens by Immigration and Customs Enforcement (ICE), the law enforcement agency of the Department of Homeland Security (DHS).

Unless things change dramatically, immigrants should expect long wait times, thick applications, and gridlock.  

The Problem? An Old Framework for U.S. Immigration Policy

The problem isn’t necessarily what has changed in recent years but what hasn’t—an old framework strained by a growing demand.  

The H-1B visa lets companies sponsor foreign workers to come here, but the federal government caps the number distributed yearly at 65,000—plus 20,000 under the advanced degree exemption, which is for individuals who have received a master’s degree or higher at a U.S. institution of higher education. These caps are far short of the yearly applications.

Even a stellar application may not get read under the lottery system. Many lawyers advise a backup plan—such as moving a foreign worker to a branch office in another country while waiting on U.S. immigration. 

It comes as a big shock to a lot of companies and startups that it can be so difficult to come or stay here.

Anastasia Tonello

Taking Alternative Visa Routes

At least student visas allow graduates 12 months of work after finishing their education, but that doesn’t leave much time to figure out a path to residence, says Tsui Yee, an immigration attorney in New York City. Immigration lawyers suggest allowing at least several months to file for work visas. “The number one concern is usually time,” says Yee, “and also finding a company that’s willing to go through the sponsorship process. “The chances for the H-1B are so low, it has forced employees and employers to look at other options.”  

Those other options include the O-1, or “extraordinary ability or achievement” route, also known as the movie-star visa. An applicant must prove an extraordinary talent and a need to stay in the U.S. to pursue it. Applicants sometimes submit hundreds of pages of recommendations, résumés, press coverage, and other documents.

“You can’t just submit an application,” says Yee. “It’s more like collecting evidence, bundling it and presenting it.” 

The number one concern [in the visa process] is usually time… The chances for the H-1B are so low, it has forced employees and employers to look at other options.

Tsui H. Yee

Changing Policies Create Uncertainty

“It’s difficult because applicants often feel powerless,” notes Dana A. DiRaimondo, with DiRaimondo & Schroeder in Brooklyn. “We try to remind people that this is the way the system works.”  

According to Yee, immigration policies of the Trump administration added more uncertainty. Some of the programs Trump criticized on the campaign trail, DiRaimondo adds, are “lawful immigration programs his businesses have used in the past, which is hard to reconcile with his anti-immigration positions.”

For example, DiRaimondo expressed concern over statements about further limiting employment-based green cards, increasing the required wage for H-1B workers, and eliminating NAFTA, a basis for professionals coming to the U.S. from Canada and Mexico. Tonello adds, “I found it interesting that on [President Trump’s] video of what he will do in the first 100 days, it was to deal with the Department of Labor violations on immigration. Not the kind of undocumented border crossing that was the hallmark of his campaign, but now it’s moving to the business side of immigration—what we consider documented and legal workers.” 

Just as immigration enforcement priorities changed from the Obama administration to the Trump administration, President Biden signed an executive order in January 2021 rescinding President Trump’s immigration policies. The Biden administration issued new, narrowed enforcement guidelines in September 2021, which the U.S. Supreme Court upheld against legal challenges in June 2023.

In this political climate, we’ve seen a lot of people wanting to naturalize. The tone of the conversation is changing. People are worried about what it means to be an immigrant in this country.

Dana A. DiRaimondo

Becoming a Permanent Resident

Green cards—which require jumping through many hoops—are primarily obtained through investment, family, a job, or refugee or asylum seekers. Green-card holders can live and work in the U.S. permanently.

There are humanitarian categories, which include victims of trafficking, Afghani and Iraqi translators, and children born in the U.S. to foreign diplomats. Processing time for green cards can take years, but after acquiring a green card and living in the U.S. for five years, one can apply for U.S. citizenship. However, it’s a path more and more clients are trying to pursue in hopes of avoiding deportation or paperwork headaches in the long term, adds DiRaimondo.  

“In this political climate, we’ve seen a lot of people wanting to naturalize,” she says. “The tone of the conversation is changing. People are worried about what it means to be an immigrant in this country.” 

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