OCTOBER 2011
Khaas Baat : A Publication for Indian Americans in Florida

Immigration

Administration Announces Initiatives to Promote Foreign Entrepreneurial Talent: Will This Translate into Nonimmigrant and Immigrant Visa Approvals?

Dilip Patel

By DILIP PATEL
(www.dplawfirm.com)

For years, America has sought the best and the brightest from business, academia, science, and the arts. And U.S. companies have sought to attract key, highly-skilled professionals needed to manage, expand, and re-invigorate their operations here. But visa backlogs, limited visa availability, restrictive agency interpretations and rigid adjudications all have had a chilling effect on those companies who seek to expand and create jobs in the U.S. through the petitioning of foreign personnel. Entrepreneurs, self-styled capitalists and other self-employed self-starters, large and small, have experienced particular difficulty and uncertainty when applying for nonimmigrant or immigrant visa eligibility, never knowing whether their cases would be approved. In many instances, the evidentiary burden as applied to them has been disproportionately onerous; in other instances, the documentary evidence required has been misconstrued and disconnected from real business practices.

It is against this backdrop and a tanking economy that U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas and Secretary of Homeland Security Janet Napolitano recently outlined – with much fanfare – “a series of new policy, operational, and outreach efforts” designed to help invigorate the economy and stimulate investment by making it easier for highly-skilled immigrants to start and grow companies and create jobs in the United States. Citing the need to attract foreign entrepreneurial talent of all kinds, immigration officials announced plans that could positively affect immigration visa eligibility in several categories if their plans are more than mere fantasy and hype.

National Interest Waivers (NIWs) for Entrepreneurs
First, the government announced that it “will clarify,” presumably with field adjudicators, that immigrant entrepreneurs may obtain employment-based second preference (EB-2) immigrant visas if they satisfy the existing requirements. The law has always provided for such eligibility and perhaps USCIS is instructing adjudicators to merely apply the law. More notably, USCIS makes clear that entrepreneurs can qualify for an EB-2 National Interest Waiver (NIW), and sheds light on how such individuals can demonstrate that their business endeavors will be in the interest of the United States. Significantly, an individual seeking an EB-2 national interest waiver can self-petition; he does not need an employer to hire him.

Historically, the first step in proving EB-2 NIW eligibility, even for entrepreneurs, has been relatively easy. It requires that an individual is a professional holding an advanced degree or possesses “a degree of expertise significantly above that ordinarily encountered,” or exceptional ability. The second step, proving that the entrepreneur’s investment in a business venture will substantially serve the national interest, has been more challenging. To do so – to qualify for a national interest waiver – the entrepreneur must demonstrate that (1) the proposed employment or work has substantial intrinsic merit; (2) that the benefit to be provided will be national in scope; and (3) that the national benefit is so great that it exempts the individual from undergoing the lengthy and costly process of testing the labor market for U.S. workers through the labor certification process.

In its August announcement, USCIS provides some examples on how an entrepreneur can meet the NIW, or second-step requirements. To establish the national scope of the proposed benefit of the work, for instance, an entrepreneur could, describes USCIS, show a linkage between job creation in a locality and the spinoff of related jobs in other parts of the country. Alternatively, he could show that local job creation will have a positive national impact. USCIS also opines that an individual entrepreneur might be eligible for exemption from the labor certification process if he establishes that the enterprise is creating new job opportunities for U.S. workers or that it otherwise enhances the welfare of the United States. Through these examples and its broader pronouncement, USCIS seems to be signaling a break from current constructions of what is required and setting out new expectations for these kinds of cases.

To be continued …

Dilip Patel of Dilip Patel Law Firm (Business and Immigration Attorneys) is board certified in immigration and nationality law. He can be reached at (813) 855-0066, e-mail dpatel@dplawfirm.com or visit www.dplawfirm.com

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