Recent Developments Could Help Attract Foreign Entrepreneurs to the U.S and Spur Job Creation

New Developments for H-1B Workers who are Entrepreneurs

The H-1B category is mainly used to employ foreign workers in professional specialty occupations such as engineering and the sciences. On August 2, 2011, U.S. Citizenship and Immigration Services (USCIS) announced new guidelines allowing noncitizen entrepreneurs to sponsor themselves using the H-1B category. Previously, an H-1B visa could not be granted to the self-employed and to those whose employer does not “control them.” This severely impacted a start-up which is typically a new company with only the founder working to implement a new idea. Although the founder can now petition him or herself, the company must still pay the founder a salary that meets prevailing wage requirements for the profession and the founder must be performing job duties that are related to his or her degree.

New Developments for Entrepreneurs Applying for Permanent Residency Through the National Interest Waiver Category

The National Interest Waiver category is for those individuals with advanced degrees or exceptional ability who can petition themselves for permanent residency without a job offer from a U.S. employer and without a test of the labor market to determine if there are qualified U.S workers available to perform the job. The major requirement is that the individuals be performing work in the national interest and that they are essential to advancing that national interest. The latest U.S guidance allows for entrepreneurs who are advanced degrees professionals and can demonstrate that their business endeavors will create jobs to be considered for a national interest waiver.

Enhancements to the Processing of EB-5 Immigrant Investor Applications

The EB-5 visa program permits foreign nationals to obtain permanent resident status if they invest at least $1 million into a U.S start-up or existing business and create 10 full-times jobs, or invest $500,000 in economically disadvantaged areas that also creates 10 full-time jobs. This process has been under-used in part because of lengthy delays in adjudication, unrealistic job creation requirements and confusing and restrictive interpretations of the law. Proposed changes include fast-track processing to be available for applicants who seek expedited adjudication of their petitions, providing direct communication between immigration adjudicators and applicants, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application.

Proposed Changes in the Immigration Laws Which Would Lower the EB-5 Investment Threshold to $100,000

In February 2011, Sens. John Kerry (D-Mass.) and Richard G. Lugar (R-Ind.) introduced the Startup Visa Act of 2010 (S. 3029), which focuses solely on EB-5 reform, reallocating a portion of the 10,000 visas allowed annually under the EB-5 category and creating a new EB-6 category for immigrant entrepreneurs.

The bill would provide 3 three new options for entrepreneurs to obtain permanent residency.

Option One: Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a Start-Up visa if a qualified U.S. investor agrees to financially sponsor their entrepreneurial venture with a minimum investment of $100,000. After two years, their business must have created 5 new jobs and raised not less than $500,000 in additional capital investment or generate not less than $500,000 in revenue.

Option Two: Immigrant entrepreneurs currently in the U.S. on an unexpired H-1B visa, OR immigrant entrepreneurs currently in the U.S. who have completed a graduate level degree in science, technology, math, computer science, or other relevant academic discipline from an accredited United States college, university, or other institutions of higher education would be eligible for a Start-Up visa if;

They have proven that a qualified U.S. investor agrees to financially back their entrepreneurial venture with a minimum investment of $20,000.

They demonstrate annual income of not less than roughly $30,000 or the possession of assets of not less than roughly $60,000 and entrepreneurial venture with a minimum of $20,000.

After two years, their business must have created 3 new jobs and raised not less than $100,000 in additional capital investment or generate not less than $100,000 in revenue.

Option 3: Immigrant entrepreneurs living outside the U.S. would be eligible to apply for a Start-Up Visa if they have controlling interest of a company in a foreign country that has generated, during the most recent 12-month period, not less than $100,000 in revenue from sales in the U.S.