President Barack Obama’s immigration directives announced on November 20, 2014, include a plan to ease visa restrictions, “mak[ing] it easier and faster for high-skilled immigrants, graduates, and entrepreneurs to stay and contribute to our economy, as so many business leaders have proposed.”
The plan would enable foreign nationals to enter and remain in the U.S. to engage in research, development, and innovation. It involves the following changes for entrepreneurs:
Temporary Authorization to Enter and Remain in the United States
Foreign entrepreneurs, inventors, and founders of start-up companies have limited options to obtain employment-based visas under current law. Many visas, including the H-1B, require a sponsoring employer and valid employer-employee relationship, which is difficult for founders and other self-employed foreign nationals to establish. As a result, such foreign nationals face significant challenges in entering the U.S. to meet with venture capitalists, raise money, or develop and direct their business.
The proposed executive action would enhance immigration options available to foreign entrepreneurs by making them eligible for “parole status.” Parole status is typically granted for humanitarian reasons and authorizes foreign nationals to temporarily enter the U.S. without a visa for a specified period of time. The proposed change would expand the categories of foreign nationals eligible for parole status to include foreign entrepreneurs, inventors, and founders of start-up companies who have been awarded substantial U.S. investor financing or demonstrate promising innovation and job creation. Parole status would allow these foreign nationals to temporarily pursue research and development, meet with venture capitalists, and engage in other business activities from within the U.S. rather than abroad.
This change would help overcome existing visa limitations and provide a pathway for foreign entrepreneurs, investors, and founders to remain in the U.S. on a more permanent basis. For the changes to become effective, the U.S. Citzenship and Immigration Services (USCIS) would need to issue implementing guidance and/or regulations. The Department of Homeland Security (DHS) has not yet provided a timeframe for when this may happen, though it is predicted additional details will be known in early 2015.
Shorter Paths to Obtaining a Green Card
President Obama also plans to allow foreign inventors, researchers, and founders of start-up enterprises conducting research and development and/or creating jobs in the U.S. to be eligible for a National Interest Waiver (NIW). The NIW is a shortened path to obtaining a green card (i.e., allowing permanent residency in the U.S.) that allows qualified foreign nationals to bypass the PERM Labor Certification process and to self-petition for a green card. The NIW is currently available only for foreign nationals “with advanced degrees or exceptional ability” whose receipt of a green card would be in the national interest.
The proposed change will also requirenew guidance and/or regulations to clarify the standard for obtaining the NIW and clarify whether the NIW is available for both self-employed entrepreneurs and employees of enterprises engaging in research, development, and innovation. The NIW would be available in cases where a foreign national or his/her employer could demonstrate that the U.S. economy would benefit and that jobs would be created through receipt of a green card.
DHS has not announced if would accomplish this change through issuance of policy guidance or by regulation or when the change would become effective, though additional details should be known in early 2015.
Enhanced Optional Practical Changing (“OPT”) for Foreign Graduates
Foreign nationals studying in the U.S. on F-1 student visas can already request twelve months of “optional practical training” (OPT) employment authorization for temporary employment in their relevant field of study, including self-employment. Foreign nationals in certain Science, Technology, Engineering, and Mathematics field (STEM) are eligible for an additional 17 months of OPT, for a total of 29 months. President Obama seeks to expand the degree programs eligible for OPT and to extend the time period and use of this authorization for STEM graduates.
This change would make it easier for foreign nationals with start-up businesses to remain in the U.S. after graduation to direct and develop their own businesses and companies. It would also give foreign graduates additional time in the U.S. to grow their business and potentially become eligible for a green card.
The enhancements to the OPT program would be accomplished by regulation and formal rulemaking. As such, these changes would likely not be effective until late 2015 or 2016 at the earliest.
While President Obama’s proposed changes have not yet been implemented and are, at present, only recommendations, they represent a potentially important development for foreign entrepreneurs, inventors, and founders of start-up enterprises seeking to establish and stay in the U.S.