BY TEJAS SHAH*
While the U.S. economy continues to recover at a sluggish pace, the administration continues to emphasize immigration reform’s critical role in promoting innovation and entrepreneurship in the U.S. This week, Cecilia Munoz, the Domestic Policy Council Director at the White House, spoke at a forum hosted by The Hamilton Project of the Brookings Institution about the administration’s commitment to immigration reform and easing pathways for foreign investors in the United States. Sadly, however, talented and dynamic foreign entrepreneurs seeking authorization to direct, operate, manage, or work for their investment vehicles often face tedious barriers. Easing these barriers would benefit our economy and enhance our ability to out-compete other countries in the modern global economy. After all, with out foreign entrepreneurs, we wouldn’t have such U.S. companies as Yahoo, Google, and Intel.
To its credit, the administration has taken some progressive steps forward. For example, last August, USCIS announced a series of operational, policy, and outreach initiatives to spur job growth and fuel American economic competitiveness. The initiative included the announcement of an H-l B temporary visa category and an EB-2 National Interest Waiver category to foreign national entrepreneurs. This announcement plugs important gaps in the availability of immigration options to foreign investors.
While foreign business owners have utilized the E and L categories for short-term stays, and the EB-5 category for permanent residency, these options present limitations. The E visa is limited to nationals of countries with which the United States has entered into appropriate treaties, the L visa is categorized by unpredictable adjudications, and the EB-5 visa’s $1 million capitalization requirements are often out of reach for many new investors.
The new H-1B temporary visa policy is significant, however, because it lifts a previous restriction barring self-owned business from sponsoring themselves for H-1B status. Affirming the availability of both H-1B visas and EB-2 National Interest Waivers to foreign nationals is also important because it opens the door for many investors with appropriate qualifications and/or achievements to clear immigration hurdles in the United States.
Although many welcome these two visa categories, USCIS has not yet provided further detail, leaving immigration attorneys to work with their clients to sufficiently document stringent visa requirements. Given the high stakes for our economy, one hopes that DHS and the White House view this announcement as a first step in a longer series of changes. Changes in policy must be accompanied by a thorough programmatic review of adjudications. H-1B visa adjudications, for example, are routinely characterized by burdensome and often-unnecessary Requests for Evidence (RFEs) on topics such as educational equivalence and the bona fide nature of a job opportunity.
The inconsistency and complexity of the immigration process renders foreign investors leery of making the necessary investments in the United States. While many other rules, including tax and securities regulations impact foreign investors in the United States, immigration rules are particularly significant as a threshold issue determining whether foreign nationals can even lawfully work in the United States. Adjudicators, who appear to be trained to find any reason to deny an application for benefits, must be trained to shift their focus to the actual legal and regulatory requirements of H-1B and EB-2 National Interest Waivers applications and to adjudicate applications in the spirit of this announcement.
It is essential that USCIS recognize the importance of immigrants to job creation in the United States and facilitate, rather than hinder, the immigration of dynamic foreign entrepreneurs to the United States. This will significantly promote our country’s edge in a very competitive global economy.
*Tejas Shah is an attorney at the Kriezelman and Burton law firm in Chicago, IL, focusing primarily on employment-based immigration. He can be reached at firstname.lastname@example.org.
The original version of this article first appeared in the Globe, the newsletter publication of the Illinois State Bar Association’s Section on Intl. and Immigration Law.