DHS “Entrepreneur Pathways” Website and Other EIR Initiatives – Only As Good as the Visas and Adjudicators Permit

As part of its initiative, “Entrepreneurs in Residence (EIR),” USCIS recently launched a new website called “Entrepreneur Pathways,” designed to help business people understand what immigration options are open to them and to help navigate through detailed overviews of what they need to apply for appropriate visas. Nonimmigrant visa categories outlined include B-1, H-1B, L, E, and O. See www.uscis.gov/portal/site/uscis/eir.

Launched earlier this year, EIR hopes to help stimulate more foreign start-ups and, in turn, boost the struggling U.S. economy.  Its stated goals are to draw upon industry expertise to strengthen USCIS policies and practices critical to American economic growth.  By working with start-up business experts, USCIS officials seek to streamline pathways for a range of existing nonimmigrant visa categories often used by entrepreneurs.

According to USCIS, its EIR team is now developing and deploying training workshops for adjudicators that focus on start-up businesses and the environment for early-stage innovations; is training a team of specialized immigration officers to handle entrepreneur and start-up cases; and is modifying its current documentation checklists (RFE templates) for certain nonimmigrant visa categories and thus incorporating new types of relevant evidence into the adjudicative process.  These changes are designed to ensure that USCIS stays current with real world business practices. (A new study released in the fall reported that immigrant-founded companies nationwide slipped for the first time in decades, and that the United States’ unwelcoming immigration system has created a “reverse brain drain.”)

While USCIS’s efforts are commendable, and especially so if adjudication criteria are truly overhauled, serious changes to the immigration laws still must be enacted if the U.S. is serious about attracting foreign entrepreneurs, investors, and related talent.  Here are some problems that must be addressed.

First, there is no specific visa category – nonimmigrant or immigrant – for foreign nationals who seek to create start-ups. Period. While executives and managers who work for large companies abroad can transfer to a company in the U.S. on an L-1 visa and then obtain a green card, not so for entrepreneurs. Talented chefs of distinction can come to the U.S. to work for a restaurant on O-1 visas; professors and researchers can work here on professional H-1B visas and then obtain their green cards; and even performers can come to the U.S. to perform on special P visas. Even perhaps the most relevant nonimmigrant visa for entrepreneurs – E treaty trader or investor visas – is only available to those who are from specific countries.

Second, those existing visa categories that could be used for entrepreneurs often are not viable, because adjudicators apply regulatory standards and agency interpretations so narrowly that few individual entrepreneurs can qualify. For example, an entrepreneur who seeks to open a new U.S. branch office of her foreign-based company in order to obtain an L-1 visa must spend funds on renting an actual office for a year and buying elaborate equipment that normally is unnecessary to effectively start and operate her business. Obtaining green cards for entrepreneurs is even more complex and difficult. For example, criteria for the national interest waiver (NIW) green card category, a category that could be used for entrepreneurs, are interpreted narrowly.  Moreover, they require a direct connection between the business and very precise, articulated U.S. national interests as well as the individual’s proven track record of influencing his industry. The latter standards are neither in the law nor in regulations. Even just an expansion of USCIS’s 15-day premium processing adjudication program to NIW cases would go a long way towards providing predictability and thus attracting potential entrepreneurs who seek to attempt an NIW filing.

In a recent White House blog about the EIR initiative, the White House states that President Obama supports congressional action to create a “start-up visa” designed specifically for immigrant entrepreneurs, as part of his vision for a “21st Century immigration system”.  That same blog states:

“President Obama is committed to attracting the world’s best and brightest entrepreneurs to start the next great companies here in the United States, and Entrepreneur Pathways is an important and concrete next step to facilitating that. . . .[I]magine that an entrepreneur from another country participates in a startup mentorship program in the United States, raises a first round of funding from investors, and wants to stay here to grow the company and hire more people.”

Sounds great, but we ask, how?

 

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