Entrepreneurial H-1B and L-1A visas: Not

Entrepreneurial H-1B and L-1A visas: Delays in processing; no more H-1Bs for this fiscal year

The Obama Administration has publicly declared a policy of encouraging foreign entrepreneurs to create startup companies to foster job growth. In fact, at the end of this summer the Department of Homeland Security Secretary Napolitano and United States Citizenship and Immigrant Services Director Mayorkas made dramatic announcements advising that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. According to the DHS press release, these administrative tweaks within the existing legal framework would “fuel the nation’s economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability.”

Despite these lofty pronouncements, the H-1B and L-1A petitions of several of our clients are now languishing at both the Vermont and the California Service Centers. One of our Silicon Valley client companies is a start-up wholly-owned subsidiary of a publicly traded Indian company. The foreign national holds two master’s degrees in engineering and biochemistry. It is his expertise that will enable the company to register its products and get off the ground. The decision to file the H-1B was reinforced by the administration’s newly articulated commitment to approving the visas for qualified individuals for exactly this situation. Now these cases are delayed while presumably more definitive guidance will be forthcoming from DHS headquarters.

In the meantime, the H-1B cap was reached as of November 22, 2011, which means that the dreams of would-be entrepreneurs will have to go on hold until October 1, 2012 at the earliest. Given the lack of consistent guidance on how to adjudicate these start-up cases, it is understandable that many creative and energetic would-be entrepreneurs may be better off setting up the start-up in another country. It is clear that we need more H-1B numbers to allow this current crop of talent to put their skills to good use to jump start the economy. Unfortunately, it is highly doubtful that Congress will rescue U.S. employers and startups by getting rid of the cap or at least providing for more H-1B visas right when we need them. What a shame that the dreams of so many are being shattered to the detriment of our economic recovery.

Article categories: Entrepreneurs and Business Start-ups, Immigration Policy and Legislative Initiatives

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