San Francisco - Shera Bechard, the Canadian-born former
girlfriend of Playboy Enterprises founder Hugh Hefner, would not be an obvious
candidate for the special visas that the US government reserves for
"individuals with extraordinary ability".
Playboy magazine named Bechard Miss November in 2010, and
she also started an online photo-sharing craze called "Frisky Friday".
Neither seems quite on the level of an "internationally recognised award,
such as a Nobel Prize", which the government cites as a possible
qualification.
But Los Angeles immigration lawyer Chris Wright argued that
Bechard's accomplishments earned her a slot. The government ultimately agreed.
That kind of success has put Wright on the map as the go-to
visa fixer for both Hollywood and Silicon Valley. It also highlights the use of
so-called genius visas known as O-1s and EB-1s, which have largely escaped
political controversy and are now the immigration solution of choice for many
entrepreneurs.
As many immigration lawyers see it, the paucity of
immigration options for the most entrepreneurial foreigners mean they must use
any avenue they can.
This approach, along with seeming flexibility in Washington
on what constitutes "extraordinary ability", means the O-1 is gaining
traction in technology circles. Wider use could ultimately land it in political
trouble.
For example, the H-1B visa, which allows employers to hire
foreigners temporarily in certain specialised fields like technology, has drawn
accusations from union groups and others that companies use it to bring in
lower-skilled labour.
The O-1 visa allows individuals of "extraordinary
ability" to come to the United States for up to three years, and can be
extended. British journalist Piers Morgan used one when he replaced Larry King
on his late-night TV show, Wright said.
The EB-1 is similar, but leads to a green card and permanent
residency rather than a temporary stay, with "extraordinary ability"
being one of the ways to qualify - along with being an outstanding professor or
researcher, or a multinational executive.
Foreign entrepreneurs have another option - the Immigrant
Investor Programme, or EB-5 visa - but it requires a capital investment of at
least $500 000 and the creation of at least 10 full-time jobs for US workers.
By contrast, no proof of personal wealth or investment in
the United States is required for the O-1 or the EB-1.
There is also no cap on the number of O-1s that the
government can award each year; about 12 280 were approved in 2011, US
Citizenship and Immigration Services said, up from 9 478 in 2006. It issued
about 25 000 EB-1s last year, below the cap of 40 000.
The H-1B is much more popular. Applications hit their annual
cap of 85 000 earlier this month.
Fallback position
While high-profile artists and entertainers have long used
the O-1s, they are now becoming a fallback for businessmen and technologists
who cannot get H1-Bs.
Josh Buckley, a 20-year-old British-born entrepreneur and a
client of Wright's, is among the new crop of internet entrepreneurs to win an
O-1 visa. He applied after starting a few small companies, including one he
sold at age 15 for a sum reaching the low six figures, he says.
He got his O-1 last year after lining up letters of
recommendation from luminaries including Netscape co-founder and venture
capitalist Marc Andreessen and Apple Inc
co-founder Steve Wozniak.
Buckley, whose MinoMonsters gaming company is backed by
Andreessen, saw little choice other than the O-1. The H-1B was off limits
because it usually does not go to people who work for themselves. The O-1,
unlike most H-1Bs, also does not require a college education--a key feature for
the ever-younger entrepreneurs flocking to Silicon Valley.
Except when it comes to the O-1, visa officials “just don’t
understand the concept of someone being skilled without 12 years of experience
or a bachelor’s degree,” says John Collison, a 22-year-old Irishman. He dropped
out of Harvard University to work on Stripe, the payments company he co-founded
with his brother, Patrick.
Like Buckley, he met Wright through the prestigious Silicon
Valley start-up incubator known as Y Combinator. He won his O-1 in December
2010 and now has permanent residency status- as does Buckley.
Wright, himself a South African immigrant, dismisses the
notion that some of his clients might not rise to the level of
"extraordinary ability".
"There's nothing in those regulations that requires you
to be a genius," he says. "It's quite condescending to say: "Oh,
the idiot Playboy Playmates, they don’t qualify'."
At the end of 2010, Bechard posted the first "Frisky
Friday" photo on the Twitter microblogging service. Now young women all
over the world tweet scantily-clad pictures of themselves on Fridays, with
Playboy selecting a weekly winner.
Immigration officials "want to give (a visa) to someone
who shows business skills", Bechard says. She also threw in such
qualifications as her role as a mute Russian in a 2009 movie, Sweet Karma,
which won her a best actress award at the cult Fantastic Film Festival in
Austin, Texas.
Qualification question
Many of Wright's young technology clients have had limited
time to show they have "risen to the very top of the field of
endeavour", as O-1 regulations state.
But quality rather than longevity is the key, Wright says.
USCIS rules require extraordinary ability - demonstrated by "sustained
national or international acclaim" - that he says his clients can prove
with awards and testaments from leading players in their field.
The visas are "a lot of work", he said. "You
can't just crank them out at high volume."
Asked about how it decides to grant O-1s, a US Citizenship
and Immigration Service spokesperson said: "USCIS decides each benefit
request on a case-by-case basis relying on the law and evidence provided for
that case.
"There are a variety of factors that influence the
number of visa applications received and approved from year to year."
Wright says he hopes that one day, immigration reform will
make it easier for talented immigrants, especially entrepreneurs, to come to
the US. That is a widespread goal in Silicon Valley, where immigrant
entrepreneurs have helped start many leading companies.
Google co-founder Sergey Brin, for example, came to the
United States from the Soviet Union when he was a child.
The immigrant entrepreneurs say that far from taking away
jobs, they are creating them by founding companies that may go on to employ
hundreds or even thousands of people.
They have managed to find allies even among the harshest
critics of H-1Bs.
"The O-1 is one of the few visas we support," said
Kim Berry, a spokesperson for the Programmers Guild, which favours the
suspension of the H-1B programme. "When they need to bring in the best and
the brightest and the entrepreneurs, that's the only visa that helps
America."
Indeed, efforts to make it easier for educated and
enterprising foreigners to stay in the United States generally enjoy
bi-partisan support in Washington. The complicated status of the immigration issue
as a whole, though, has blocked any changes.
"The issue is pretty well understood," said Steve
Case, the founder of AOL and now head of the venture capital firm Revolution.
"But there is this scepticism around the politics of immigration."
Thus the O-1 will probably remain a key channel for many
immigrant entrepreneurs - and it does carry some additional side benefits.
British-born Scott Allison, co-founder of a software company
called Teamly, was returning to the United States earlier this month and
enjoyed a rare welcome from customs officials after they caught a glimpse of
his new O-1 visa.
"Wow, you must be really awesome," he recalls one
commenting before waving him through. "I'm like: 'Gee, thanks'."