Immigration Initiatives for Foreign Entrepreneurs

Sweta KhandelwalAttorney-At-LawPrincipal Attorney at Law Offices of Sweta Khandelwal

November 12 , 2011

SIPA - Entrepreneurship – Idea Wave 3.0

AgendaFocus of today’s discussion

• Discuss availability of EB-2 & National Interest Waiver (NIW) for Entrepreneurs

• Clarify the updates on H-1B for sole shareholders• Highlight extension of Premium Processing to

(i) EB-1 for Executives/Managers of MNC’s (ii) EB-5

• Explain the streamlined EB-5 process• Educated on the increased involvement of the Office of

Public Engagement

So, what’s new?

• Immigrant entrepreneurs may obtain an EB-2 immigrant visa & may also qualify for a National Interest Waiver

On August 2, 2011, USCIS announced initiatives to promote start-ups

Entrepreneurs to qualify for EB-2 & NIW

Sole shareholders can get H-1B

PP extended; EB-5 simpler;Feedback open

• Sole employee-entrepreneur can establish an employer-employee relationship for an H-1B visa.

• Premium Processing extended to immigrant petitions for executives/managers of MNC’s

• EB-5 process streamlined based upon stakeholder feedback

• New engagement opportunities launched to seek input/feedback to address the unique circumstances of entrepreneurs, new businesses & startups.

Immigrant entrepreneurs and the EB-2 Immigrant Visa (IV)

What is the EB-2 Immigrant Visa

Employment-based 2nd preference (EB-2) IV is available to:• FN with advanced degrees

(occupation must be a profession)• FN of exceptional ability

(arts/sciences/business)• Must benefit US economy,

cultural/educational interests, or welfare of the US

• FN must have a job offer• FN’s sponsor must (usually) file a

Labor Certification with the DOL

The company founded/co-founded by the entrepreneur, or in which the entrepreneur has a stake can now sponsor the entrepreneur’s IV/GC.

The company and entrepreneur must comply with all statutory requirements

A job offer from the company is required – a Labor Certification must be filed with DOL

Policy changes Key Implications

Elaborated further

Understanding “exceptional ability” & “cultural/educational interest” and “welfare of the US”

• No rule of law that a specific kind of evidence is required

• Key is the quality and relevance of evidence submitted

“I am an entrepreneur – I must be an Ivy League dropout, not someone with a degree”

• “Welfare” not defined in the statute

• Relative concept• Limited precedent available• Creative lawyering works

“How does my mobile application benefit the national economy, cultural or educational interests, or welfare of the US?”

National Interest Waiver

• FN must first be eligible for EB-2 • FN entrepreneur will qualify for NIW if

business will create jobs for U.S workers or enhance US welfare.

• Three pronged test to understand eligibility for NIW1. Employment is in an area that has

substantial intrinsic merit – focus on area of employment rather than qualification

2. Proposed benefit is national in scope (e.g. jobs created locally will also create related jobs elsewhere in the country)

3. Presents a significant benefit in the field of endeavor identified in 1 (above)

No job offer is required from any company (not even your own)!

No Labor Certification is required to be filed.

Entrepreneur can petition for himself/herself and is both petitioner and beneficiary

Policy Changes

Key Implications

H-1B Guidance

THEN

USCIS issued guidance in January 2010 (the Neufeld memo) which placed a greater emphasis on documenting the employer-employee relationship than in the past. This made it extremely difficult for individuals with an ownership interest in the petitioner to obtain a H-1B Visa.

NOW

An beneficiary, who is the sole owner of the petitioner company, may be able to establish a valid employer-employee relationship for H-1B purposes. Company’s right to control a sole owner/shareholder employee can be demonstrated through a separate BOD that can hire, fire, pay, supervise or otherwise control the beneficiary. .

The Neufeld Memo

Premium Processing

• USCIS is expected to open premium processing for EB-1 multinational manager/executive petitions w.e.f early 2012

• Premium processing is currently available for EB-2 and EB-3 IV

• Premium service is not currently available for NIW

Business petitioners may choose to pay a special fee to obtain expedited processing of their cases. USCIS is required to process the petition within 15 calendar days.

EB-5

• Extending the availability of premium processing for certain EB-5 petitions

• Implementing direct lines of communication between the investors and USCIS

• Providing investors with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in the petition.

EB-5 makes 10,000 visas available annually to immigrant investors who invest in commercial enterprises that create at least 10 U.S. jobs. Investors may petition independently or as part of a USCIS designated Regional Center.

Follow-up actions by USCIS• Public engagements: with entrepreneurs and

stakeholders for input and feedback

• Modification in internal policies and guidelines: by incorporating input from public engagements

• Internal training for USCIS staff : on the unique characteristics of entrepreneurial enterprises and startup companies

Proposed Legislation

Attracting innovations and job creators: EB-1 GC for STEM

Exempts STEM Degree Holders from Cap Gap Students can have Dual Intent New green card category for entrepreneurs

who establish new start-up businesses either through VC or self funded

Eliminating Employment-Based Per Country Levels

Premium processing for all employment-based immigrant petitions and applications, including any administrative appeal any such petition or application.

Increased Portability for H-1B Employees Simplify the EB-5 visa

Immigration Driving Entrepreneurship in America (IDEA) Act of 2011

Latest Major Action: 9/8/2011: Referred to House subcommittee.

Provides a 2 year conditional visa Modifies the EB-5 Visa Allows non-US entrepreneurs with

funding from a US investor to get a visa to start a company

Visas available to entrepreneurs living outside the U.S (at least $100,000 to come from a US investing entity), H-1B workers, STEM graduates (at least $20,000 to come from a US investing entity) under certain conditions

More than 160 venture capitalists from across the country have endorsed the proposal.

Start-Up Visa Act of 2011.

What’s in store?

• Shift in policy implementation- USCIS efforts to ensure that “potential of existing laws are fully utilized”

• Limited precedent available: require a creative and customized approach to each case

• Explore all available options

• Stay tuned for the legislative updates

Changing legal environment

Entrepreneur guidelines

For questions, contact: The Law Office of Sweta Khandelwal

sweta@khandelwalaw.comPhone: 408 423 8272; 408 505 2065

www.khandelwalaw.com

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