On August 2, 2011, Secretary of Homeland Security Janet Napolitano and USCIS Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to promote start-ups. They hope these initiatives will fuel the US economy and stimulate investment in the United States by attracting foreign entrepreneurial talent of exceptional ability or talent who otherwise can create US jobs, form start-up companies in the United States, and/or invest capital in areas of high unemployment in the United States.
“The United States must continue to attract the best and brightest from around the world to invest their talents, skills, and ideas to grow our economy and create American jobs,” said Secretary Napolitano. “Today’s announcements will help our nation fully realize the potential of existing immigration laws.”
“Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation’s economy,” said Director Mayorkas. “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.”
These actions to promote start-ups mark the six-month anniversary of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America’s job-creating entrepreneurs. They have also been one key focus of the President’s Council on Jobs and Competitiveness, which has recommended taking action to help ensure that America can out-innovate and out-compete the world in a global economy.
USCIS has published a Start-Up/Entrepreneur Fact Sheet and FAQs (EB-2 and Entrepreneurs FAQ; H-1B and Employer-Employee Relationship) on its website clarifying that entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the existing requirements, and may qualify for a National Interest Waiver (NIW) under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the US.
USCIS will complement their Start-Up/ Entrepreneur Fact Sheet and FAQs with internal agency training on the unique characteristics of entrepreneurial enterprises and start-up companies, and they will incorporate input from the upcoming stakeholder engagements detailed below.
The EB-2 immigrant visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 immigrant visa petition requires a job offer and a Department of Labor certification. These requirements can be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the US (otherwise known as a National Interest Waiver or NIW). It is unclear how much impact these USCIS initiatives will have on adjudication of petitions on by start-up companies or entrepreneurs who wish to come to the United States to establish a business, or who wish to employ foreign workers.
In response to stakeholder feedback, USCIS has also updated existing FAQs to clarify that an H-1B visa beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B visa – which is used by US businesses to employ foreign workers in specialty occupations that require theoretical or technical expertise in specialized fields, such as science, engineering, and computer programming. We expect this initiative to have only a minimal impact on H-1B visas for sole or majority owners of start-ups unless the petitioning start-up entity is clearly not controlled by the person seeking an H-1B visa.
The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days.
Created by Congress in 1990, the EB-5 program stimulates the US economy through capital investment and resulting job creation by immigrant investors. As of June 30, 2011, the EB-5 program has resulted in an estimated $1.5 billion+ in US capital investments and created at least 34,000 US jobs.
USCIS has also announced the expansion of its Premium Processing Service to the EB-1 Multinational Executive/ Manager Green Card category (EB-1-3 or MNE). Premium Processing allows employers to expedite processing of their petitions, absent evidentiary deficiencies, fraud or national security concerns.
In addition, despite USCIS’s initiatives regarding start-ups and entrepreneurs, the agency continues to crack down on adjudication of petitions in this category as well, as it is applying a new interpretation of “Employer/Employee” relationships to EB-1 Multinational Executive/ Manager petitions. This means that employees or those with a significant ownership interest of the petitioning entity will have limited success in EB-1 Multinational Executive/ Manager Green Card petitions, even if they meet all requirements for this category. Unfortunately, this issue also applies to the nonimmigrant version of the EB-1 Multinational Executive/ Manager, the L-1A Intracompany Transfer for Executives or Managers, making it far more difficult for those with ownership of smaller business entities to obtain either an L-1 or EB-1 Multinational Executive/ Manager approval.
Finally, USCIS is launching a new series of engagement opportunities for entrepreneurs and start-ups. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and start-ups through its policies and regulations in the employment-based visa arena. For detailed information on USCIS’s public meetings, please visit www.uscis.gov/outreach.