Introduction
USCIS releases immigrant entrepreneur FAQ
Introduction
In a reversal of policy, US Citizenship and Immigration Services (USCIS) has reinterpreted its regulations to allow foreign entrepreneurs access to the national interest waiver of the labour certification requirement. In effect, this should allow a much faster, more secure route to US residence status for some employment-based immigrants with exceptional ability in business and other fields.
Owners of businesses who have advanced degrees or who can otherwise establish outstanding ability in business, the arts or sciences will now be eligible for a fast track to legal permanent resident status if they demonstrate that the national interest would be served by their proven ability to create jobs and other benefits to the United States
USCIS Director Alejandro Mayorkas announced the measure to ease restrictions on job-creating immigrants. This comes as the President's Council on Jobs and Competitiveness and Startup America reach out to foreign entrepreneurs in an effort to attract and retain foreign direct investment in the United States.
The White House is coordinating efforts by the public and private sectors to foster opportunity and promote job creation for start-ups and high-growth businesses. Part of this is a push to re-evaluate regulations that are found to impede jobs creation and start-up businesses in the United States.
In recent days the Startup America partnership announced the first Impact Investment Partner, a Small Business Administration (SBA) commitment to invest up to $1 billion in underserved communities and emerging sectors over the next five years. This first effort will focus on growing businesses in Michigan, with up to $130 million allocated for this purpose - up to $80 million of which will come from SBA. Startup America has launched the Impact Investment Fund "to accelerate entrepreneurship and turn innovation into jobs".
USCIS releases immigrant entrepreneur FAQ
As part of its new policy, on August 2 2011 USCIS released a frequently asked questions (FAQ) document(1) that lays out its revised position regarding eligibility for the Employment-Based Second Preference visa category and the national interest waiver. Highlights include the following:
"Q4. Can an entrepreneur qualify as a member of a profession holding an advanced degree?
A4. Yes. An entrepreneur can qualify if the:
Q5. Can an entrepreneur qualify as an individual of exceptional ability in the sciences, arts, or business?
A5. Yes. An entrepreneur can qualify if the:
The most significant change in the new policy is that a self-employed person is now eligible for the national interest waiver of the labour certification requirement. Previous interpretation made it virtually impossible for most self-employed aliens, such as those who start up and operate as the sole heads of their own businesses, to qualify for a waiver. That was a serious problem for entrepreneurs, particularly as the US Department of Labour bars by regulation the self-filing of alien labour certifications. The new USCIS policy now states that EB-2 waiver may now be granted provided that certain requirements are met:
"Q12. If an entrepreneur wants to file for a [national interest waiver], does he or she still have to be a member of the profession holding an advanced degree or an individual of exceptional ability?
A12. Yes. The entrepreneur must first demonstrate that he or she is either a member of the profession holding an advanced degree or an individual of exceptional ability.
Q13. If an entrepreneur wants to file for a [national interest waiver] must he or she have an actual employer in the United States?
A13. No. Pursuant to INA 203(b)(2)(B), an entrepreneur does not need to have an actual job offer from a U.S. employer if he or she qualifies for a [national interest waiver]. In other words, an entrepreneur may be able to petition for him or herself and fill the role of both the petitioner and beneficiary. The law provides that the Secretary of the Department of Homeland Security may, if he or she deems it to be in the national interest, waive the requirements that an individual's services in the sciences, arts, professions, or business be sought by an employer in the United States.
Q14. Is there a definition of 'national interest'?
A14. The term 'national interest' is not defined in the statute or the regulations, and Congress did not specifically define the phrase in the relevant legislative history. However, USCIS issued a precedent decision concerning [national interest waivers], Matter of New York State Dept. of Transportation, 22 I&N Dec. 215 (Comm. 1998) (NYSDOT).
While NYSDOT does not involve an entrepreneur, the decision contemplates that entrepreneurial or self-employed beneficiaries may qualify for the [nationai interest waiver] under limited circumstances. Footnote 5 in the decision states:
The Service acknowledges that there are certain occupations wherein individuals are essentially self-employed, and thus would have no U.S. employer to apply for a labor certification…[T]he petitioner still must demonstrate that the self-employed alien will serve the national interest to a substantially greater degree than do others in the same field.
NYSDOT lays out a three pronged test for [nationai interest waiver] applicants to qualify for a waiver of the job offer requirement."
This is indeed welcome news for many non-immigrants with start-ups who would otherwise have run out of time. The current US immigration regime lacks a specific provision for granting permanent status to entrepreneurs.
This has become a problem because in recent years USCIS has denied many L-1 applications and renewals, particularly for executives and managers in the IT outsourcing industry, forcing multinational companies to seek alternatives to the once reliable progression of L-1A non-immigrants to First Preference immigrant visas.
If an EB-1 petition is ruled out because of loss of L-1A status, the alternatives to immigration for multinational company executives and managers is PERM labour certification or an I-140 petition for EB-2 Exceptional Ability in Business with an application for a national interest waiver of the labour certification. This process can be particularly complicated for entrepreneurs who have an ownership stake in the companies that they helped establish.
The previous interpretation taken in 1998 by the then Immigration and Naturalisation Service commissioner was that the NYSDOT decision all but eliminated the self-employed from eligibility for a national interest waiver. NYSDOT requires the petitioner to demonstrate persuasively that the national interest would be adversely affected if a labour certification were required for the beneficiary - that is, that the national benefit offered outweighs the inherent national interest in the labour certification process.(2)
The August 2 FAQ concludes on a far more encouraging note for those who may have been otherwise considering exit plans from the US start-ups they founded:
"The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for [a national interest waiver]. For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers. The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field."
For further information on this topic please contact Rami D Fakhoury at Fakhoury Law Group PC by telephone (+1 248 643 4900), fax (+1 248 643 4907) or email ([email protected]).
Endnotes
(1) See "Employment-Based Second Preference Immigrant Visa Category Frequently Asked Questions Regarding Entrepreneurs and the Employment-Based Second Preference Immigrant Visa Category", http://www.uscis.gov/portal/site/uscis/menuitem.5af9bb95919f35e66f614176543f6d1a/?vgnextoid=93da6b814ba81310VgnVCM100000082ca60aRCRD&vgnextchannel=6abe6d26d17df110VgnVCM1000004718190aRCRD.
(2) The third prong of NYSDOT requires a showing "that it would be contrary to the national interest to potentially deprive the prospective employer of the services of the alien by making the position sought available to U.S. workers". Elsewhere in NYSDOT, the Immigration and Naturalisation Service seems to erect an even higher barrier by requiring the petitioner to establish "that the alien will serve the national interest to a substantially greater degree than would an available U.S. worker having the same minimum qualifications".
In addition, that decision in effect required a demonstration that the beneficiary is virtually unique, which only the Department of Labour may conclusively determine through a finding that similarly qualified workers are not available in the United States.