On August 2, 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas announced a series of "policy, operational, and outreach efforts" to fuel the U.S. economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or those who can create jobs, form startup companies, and invest capital in areas of high unemployment.The DHS/USCIS announcement noted the following:
- USCIS will conduct internal training on the unique characteristics of entrepreneurial enterprises and startup companies and incorporate input from a new series of stakeholder engagements;
- The employment-based second preference (EB-2 visa) classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences, or business. Generally, an EB-2 visa petition requires a job offer and a Department of Labor certification. These requirements may be waived under existing law if the petitioner demonstrates that approval of the EB-2 visa petition would be in the national interest of the U.S. USCIS noted that entrepreneurs may obtain an EB-2 immigrant visa if they satisfy the existing requirements, and also may qualify for a national interest waiver under that visa category if they can demonstrate that their business endeavors will be in the interest of the U.S.;
- In response to previous stakeholder feedback, USCIS has updated its existing FAQs to clarify that an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa;
- USCIS is "transforming" the EB-5 immigrant investor intake and review process. In May, USCIS proposed extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. After reviewing stakeholder feedback on this proposal, USCIS is developing a "phased plan to roll out these enhancements and is poised to begin implementing the first of these enhancements within 30 days" of August 2, 2011. As of June 30, 2011, USCIS estimated that the EB-5 program has resulted in more than $1.5 billion in capital investments and created at least 34,000 U.S. jobs;
- Premium processing service is being expanded for immigrant petitions for multinational executives and managers; and
- USCIS is launching a new series of engagement meetings for entrepreneurs and startup companies. These meetings will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses, and startup companies through its employment-based policies and regulations. USCIS also seeks feedback on examples of the business lifecycle for entrepreneurial ventures, small businesses, and startups, to include initial funding available, typical organizational structure, ownership structure, and payment of salaries; and examples of typical business plans for entrepreneurs and startups.
The DHS/USCIS announcement is here.
For more information on USCIS's public meetings, see here.
For a reaction to this initiative and suggestions to improve it, see the following blog post by Seyfarth Partner, Angelo A. Paparelli, "Executive Craftsmanship: Job Creation through Existing Immigration Laws."