A NEW START-UP VISA FOR ENTREPRENEURS – TRUE? YES and NO
On August 2, 2011, the Department of Homeland Security Secretary Napolitano and USCIS Director Mayorkas announced with much fanfare that foreign entrepreneurs could take advantage of the existing non-immigrant and immigrant visa system to gain status and permanent residency. See the DHS press release. Director Mayorkas wrote a blog acknowledging that entrepreneurs and skilled workers would “fuel our nation’s economy by creating jobs, and promoting new technologies and ideas.”
USCIS has loosened previous standards by stating certain conditions under which an entrepreneur can start up a company and have the company petition for its services under the H-1B. However, the H-1B visa has a six year limit. What happens to this entrepreneur after six years? The USCIS has clarified other existing provisions to encourage entrepreneurs to apply for the green card. Another set of Question and Answers on the Employment-based Second Preference (EB-2) suggests that an entrepreneur can be sponsored under this immigrant visa category, which generally requires a labor certification, but can seek an exemption of the labor certification requirement through a “national interest waiver.” In addition, the beneficiary must be able to demonstrate an advanced degree (or its equivalent – bachelor’s degree + 5 years of post-baccalaureate experience) or exceptional ability.
The EB-2 Q&A also seems to suggest that the entrepreneur can also be sponsored for a green card under the EB-2 through a labor certification. Presumably, an entrepreneur under the EB-3 could also be sponsored through a labor certification. Note, however, that this position is at odds with the Department of Labor (DOL) ‘s own regulation and rulings which have disallowed a labor certification when it is the owner of a company who is being sponsored. We don’t think that USCIS consulted with DOL before making its big announcement last week. DOL is going to have to change its tune to make a green card available for an entrepreneur. Check in with us later for more news on this very important new development.
In conclusion, the new policy, if implemented, will allow foreign entrepreneurs to obtain H-1B visas, and under certain circumstances, also qualify for a “fast track” green card under the National Interest Waiver. Much administrative work remains if USCIS is serious about creating a system that will spur amazing economic activity. The DOL will need to fall into line. The horrific EB-2 and EB-3 backlogs for Indian and Chinese beneficiaries will still persist without some serious changes. It makes no sense to encourage entrepreneurs from India and China if the wait to get a green card will be in excess of 5 years in the EB-2 or more than a decade in the EB-3!