On August 2, 2011, Janet Napolitano, the Secretary of Homeland Security ("DHS"), and Alejandro Mayorkas, the USCIS Director, announced a series of initiatives that are designed to stimulate investment by attracting foreign entrepreneurial talent. According to Secretary Napolitano, the "United States must continue to attract the best and brightest from around the world to invest their talents, skills and ideas to grow our economy and create American jobs …." It is questionable whether any of these initiatives, whether viewed singly or together, will achieve these lofty objectives because they all must be accomplished within the confines of existing law.
One of the initiatives' changes involves the EB-2 National Interest Waiver classification. This immigration category was designed to attract foreign workers with advanced degrees and individuals of exceptional ability. To classify for this category, however, the FNs must be sponsored by an employer and secure labor certification unless they can show that their work is in the national interest. These so-called "national interest waivers" have been extremely difficult to secure due to a series of administrative decisions that have narrowed eligibility requirements. Now, the USCIS proposes that a FN who otherwise qualifies for EB-2 classification will be able to secure a national interest waiver if he or she can show that his or her business enterprise will "create jobs for U.S. workers or otherwise enhance the welfare of the United States."
Another series of enhancements is planned for the EB-5 immigrant classification that is available to those who invest $500,000 to $1 million in an enterprise that creates at least 10 jobs. Under the immigration laws, there are 10,000 visas available annually in this category, but the number of applications has never approached that number of visas due to problems in administration of the program and the availability of options. The USCIS has promised to make major changes in the administration of the program to make it more promising to those who would like to invest in the United States. It is not clear, however, what the USCIS and DHS proposals anticipate as the new inter-relationship between the EB-2 and EB-5 classifications. Why would any FN want to commit the substantial investment required by the EB-5 classification if he or she could secure a green card under the EB-2 classification with a much smaller and more flexible financial commitment?
Another area targeted for change by the new USCIS initiative is the H-1B program. In January 2010, the USCIS issued new guidance that limited the ability of the sole owners of businesses from using their business to sponsor themselves for the H-1B classification. According to the USCIS, a sole owner could not secure H-1B status unless he or she could establish a valid employer-employee relationship as evidenced by an independent "right of control" by the petitioning business over the beneficiary's employment. In the past, this proved impossible in most situations because the sole owners in these cases generally ran the businesses and, thus, could not demonstrate the independent right of control that the guidance required. Now, the USCIS indicates that it will approve these "self sponsorship" applications, as long as there is an accountable board of directors that has the ability to hire, fire, pay, supervise, or otherwise control the H-1B employee. It remains unclear whether this really reflects a change in administrative approach and, if so, how any H-1B sponsor could satisfy it and still retain the independence that most entrepreneurs need to run their businesses.
It is promising that both the USCIS and the DHS recognize the important role that foreign capital and talented FNs have played and can continue to play in developing the national economy. In the absence of comprehensive immigration reform, however, it is hard to see how these modest proposals could attract the foreign capital or talent that is necessary to reach the program's objectives when they still will be administered by a USCIS bureaucracy that most employers and entrepreneurs find frustrating.