The United States government has recently unveiled several initiatives designed to attract and retain foreign entrepreneurs, particularly in the high-tech sector, who wish to launch start-up companies in the United States. Although there will be no statutory or regulatory changes to immigration law, clarifications will be issued for existing visa categories to enable more entrepreneurs to gain entry into the United States and to bring speed and efficiency to the visa application process.
Among the initiatives is a plan to make it easier for foreigners who can demonstrate their work will be in the U.S. national interest to qualify for legal permanent residence, or green cards.
Foreign entrepreneurs will be eligible for a second-preference (EB-2) immigrant visa without a specific job offer as long as they demonstrate that their business endeavors will be in the U.S. national interest.
To qualify, an entrepreneur must seek employment in an area that has substantial intrinsic merit, must demonstrate that the proposed benefit to be provided will be national in scope, and present a national benefit so great as to outweigh the national interest inherent in the labor certification process, a process requiring employers to prove to the Department of Labor that they are unable to find a suitable candidate for the job position in the domestic market.
The government seeks to bolster use of H-1B visas by foreign entrepreneurs by allowing sole entrepreneurs to qualify for an H-1B if the individual’s employment is decided by a corporate board or shareholders of the start-up company. This would satisfy the regulatory requirement that a United States employer establish that it has an employer-employee relationship with respect to the beneficiary, as indicated by the fact that it may hire, pay, fire, supervise or otherwise control the work of any such employee.
As long as documents provided in support of the H-1B petition show that there is a right to control by the petitioner over the employment of the beneficiary, then a valid employer-employee relationship may be established. The start-up company must also be able to establish that the right to control the entrepreneur’s work will continue to exist throughout the duration of his or her employment term.
The EB-5 investor program that enables foreign investors and their families to qualify for green cards if they invest at least $500,000 in a U.S. project that generates at least 10 jobs will also undergo improvements to be more welcoming to foreign entrepreneurs.
The United States Citizenship and Immigration Services (USCIS) seeks to speed up the approval process by hiring additional adjudicators to evaluate applications. Petitioners will also be provided with the opportunity to make their case before an expert panel should their application require further evidence or be denied.
To discuss immigration options for foreign entrepreneurs, please contact our office.