So, during a conversation I had with an employer-client about the complexities and difficulties that are inherent within the U.S. immigration system, the client exclaimed: “I bet we couldn’t hire Superman!” And that got me thinking, what would Superman’s experience be in trying to obtain lawful nonimmigrant visa status. [1]

Superman, born on the planet Krypton to parents Jor-El and Lara Lor-Van, was neither a U.S. citizen, nor a lawful permanent resident (green card holder) [2]. As a foreign national, Superman requires nonimmigrant status authorizing him to work and live in the U.S. lawfully. Therefore, for him to be eligible to work in the U.S., he must be granted employment authorization through an immigration process, most likely approved by United States Citizenship and Immigration Services (the immigration benefits granting agency within United States Department of Homeland Security). 

We know that Superman (using an alias, Clark Kent), graduated from Smallville High School, and attended college at Metropolis University. It is believed he studied journalism; sometime after college, Superman/Mr. Kent was hired as a reporter for The Daily Planet. 

Before we discuss Superman’s prospective employment and visa options, let us address the elephant in the room. Superman entered the U.S. without inspection (EWI) at a port-of-entry. Superman’s unlawful entry occurred when his spacecraft landed in a field on the Kent Family farm just outside of Smallville when he was just an infant. In common parlance, he is an undocumented alien/foreign national. In fact, he is an alien. Foreign nationals who enter without inspection are unable to obtain lawful nonimmigrant status in the U.S. without first addressing their unlawful entry. Notwithstanding this immutable fact, for purposes of our analysis we will presume that Superman entered the U.S. lawfully and remains in valid nonimmigrant status in the U.S. and is otherwise eligible to transfer from his current immigration status to that of another nonimmigrant status.

I know what you are thinking. If Superman is working as a reporter for The Daily Planet, he must have obtained an “I” visa. The “I” visa is available to representatives of the foreign media, including members of the press, radio, film, and print industries. However, being employed by The Daily Planet would not be qualifying employment for “I” visa classification. Superman would need to have worked for a foreign-based paper or network to qualify for this visa.

Following graduation from college, Superman would have been eligible for a 12-month period of Optional Practical Training, allowing him to work in an area of employment aligned with his field of study. We can assume that The Daily Planet first employed Superman in this capacity. However, many readers are likely wondering, would he qualify for an H-1B visa? The H-1B visa has been the backbone of the U.S. immigration system for many years, but would our hero be able to obtain an H-1B today? Sadly, the answer is no. While the occupation of journalist meets the technical criteria of a specialty occupation, the fact is that there are not enough H-1B visas to go around. U.S. law permits 85,000 new H-1B visa per year (for cap-subject employers), and this year approximately 790,000 registrations were submitted in the annual H-1B visa lottery. Superman would have to be super lucky to be selected in this past year’s H-1B visa lottery.

The United States has no Treaty of Friendship, Commerce and Navigation with Krypton (and Krypton no longer exists), therefore an E-1 (Treaty Trader) or an E-2 (Treaty Investor) visa is not an option. Superman did not work for one-year in the prior 3 years for an affiliated foreign company abroad, so the L-1A (intracompany manager/executive) or L-1B (intracompany specialized knowledge worker) are no-go’s. He is neither Canadian/Mexican, nor Australian, so TN and E-3 visa categories are non-starters.

It is common knowledge that the Man of Steel has a unique set of skills and talent that sets him apart from most U.S. workers and foreign nationals, too. Could an employer use his unique skill set to justify getting a nonimmigrant work visa, such as an O-1A for aliens of extraordinary ability?  Importantly, employers seeking to hire foreign nationals using a nonimmigrant employment-based visa do not need to demonstrate that there are no U.S. workers who are ready, willing, and able to do the work offered to the foreign national. 

Certainly, Superman is an alien of extraordinary ability, is he not? The O-1A nonimmigrant visa is for individuals who possess extraordinary ability in the sciences, arts, education, business, or athletics. There is ample evidence to suggest that Superman is “faster than a speeding bullet! More powerful than a locomotive! Able to leap tall buildings in a single bound!” [3] But, would that be enough? It is not debatable that he has extraordinary athletic ability, but for what purpose? He is not a professional athlete. His super-hearing and vision are nifty, but how would he use those skills to engage in productive employment. Let us assume Metropolis, Inc., is willing to employ him to be a superhero; Superhero-ing is Superman’s true passion. [4]  His prospective employer must first provide a written advisory opinion from a peer group (including labor organization) or a person with expertise in his area of extraordinary ability. In addition, the employer must gather a substantial amount of evidence to document Superman’s extraordinary ability in the field of Super-herodom. 

If Superman has not garnered an international prize such as a Nobel Prize, Olympic medal, Pulitzer, etc. (there is no evidence in the record he has received an award at this level), his employer must provide evidence to satisfy at least 3 of 8 criteria, including: 

1. receipt of lesser nationally and internationally recognized prizes or award (NO);
2. membership in a group in the field which require outstanding achievements of their members (Justice League participation? Because Superman leads the Justice League, any statement or evidence from the JL will carry little to no evidentiary value – Maybe not);
3. published materials in professional or major trade publications, or appearance/published materials about the individual in other major media (YES);
4. participation, either individually or as part of a panel, as a judge of the work of others in the field (NO);
5. original scientific, scholarly, artistic, athletic or business-related contributions of major significance in the field (Unsure – he did force time to go backwards, but this would be difficult to prove - NO);
6. authorship of scholarly articles in the field, as published in professional or major trade publications or in other major media (NO);
7. serving in a critical or essential capacity for organizations or establishments that have a distinguished reputation (back to the Justice League. YES); and/or
8. commanding a high salary or other significantly high remuneration for services, as compared to others in the field (Superheroes do not do it for the money, so probably not.).

Even Superman, with his extraordinary superpowers, may not qualify for an O-1 visa.  

Perhaps Superman was thinking about his immigration options when he said: "It's not about where you were born. Or what powers you have. Or what you wear on your chest. It’s about what you do… It's about action!" [5]

Read here next time to learn whether Superman might find an immigrant (green card) pathway in Ice Miller’s Immigration Adventures of Superman, Issue No. 2. 

Even Superman could use the assistance of competent immigration counsel to navigate our U.S immigration system. Please contact Ken Robinson or a member of Ice Miller’s Workplace Solutions Group. 

^{[1] Issue No. 2 of Hiring Superman - An Immigration Primer will address the immigrant or green card options available to the Man of Steel. 
[2] We concede that Jonathan and Martha Kent are the adoptive parents of Superman, but there is no evidence that they engaged in an immigration process to obtain lawful immigration status for their son. 
[3] Notwithstanding social media posts to the contrary, when Superman was first published on June 6, 1938, and for the next 14 months, he did not have the ability to fly. It was a skill that first came to him on August 5, 1939. 
[4] Sorry, Lois. 
[5] Infinite Crisis (Vol. 1) #7, published April 3, 2006, cover date of June 2006.}

This publication is intended for general information purposes only and does not and is not intended to constitute legal advice. The reader should consult with legal counsel to determine how laws or decisions discussed herein apply to the reader's specific circumstances.