Our current immigration laws are specifically tailored to suit the traditional business model. However, with the increasing advancements in technology, the face of a “traditional business looks much different than it did twenty, even ten years ago. Non-traditional businesses are now run in informal, nontraditional settings such as from the home or online. Roles and titles in these start-up companies are more fluid. These businesses might first consist of only 2 or 3 people without organizational charts or financial statements. Under the current immigration structure, entrepreneurs of these non-traditional startup companies have struggled to fit into preexisting visa classifications and have effectively been kept out of the United States.
The current immigration scene is a huge deterrent for foreign entrepreneurs to set up shop in the United States. Specifically, foreign entrepreneurs are unwilling to pour their resources into the U.S. economy, only to risk the possibility that their visa application be denied. Under our current system, there are no certain criteria that guarantee an entrepreneur of a startup company will receive his/her visa.
USCIS has recognized this shift in the traditional business model and is attempting to make changes to increase entrepreneurial immigration as well as stimulate the US economy. It recognizes that with a little more flexibility, the current immigration structure can provide a gateway for these entrepreneurs to enter the United States. Although Congress is not going to create an “entrepreneurial visa anytime soon, USCIS is taking steps to work within the current framework to accommodate foreign national entrepreneurs who will inevitably stimulate the U.S. economy and create more U.S. jobs. USCIS is changing its focus from the traditional employment-based immigration to the dynamic and untraditional business environments of startup enterprises in order to increase this type of entrepreneurial immigration.
On October 11, 2011, USCIS Director Alejandro Mayorkas announced a new initiative called “Entrepreneurs in Residence (EIR) to harness industry expertise from the public and private sectors that will increase job creation potential of employment-based and high-skilled visa categories. This initiative focuses on improving the policies and practices of nonimmigrant visa classifications including B, H-1B, E-1/E-2, L-1 and O-1. With the EIR initiative, USCIS recognizes that an educational process needs to take place on the government level in order for foreign entrepreneurs to utilize the current system. A major goal of the initiative is to take steps towards providing a more transparent and predictable decision-making process. If foreign entrepreneurs can gauge the success rate of their visa applications, they will be more willing to open their businesses in the United States.
On February 22, 2012, the first Information Summit of the EIR was held in Silicon Valley. This Summit included panels, discussions, and opportunities for participants to share strategies to ensure that the immigration pathways for foreign entrepreneurs are clear, consistent, and more reflective of today’s business realities. Through this initiative USCIS has partnered with business experts, prominent entrepreneurs and industry leaders to improve the way we approach the employment-based and high-skilled visa categories used by immigrant entrepreneurs. Over the next several months experts in the industry will meet to discuss ways to ensure that the current immigration system becomes more accessible to foreign entrepreneurs. One of the main goals is to determine how USCIS can realize the full potential of immigration law to foster entrepreneurship and bolster the U.S. economy.
With the dawning of the Entrepreneurs in Residence Initiative, there is hope for those foreign entrepreneurs who have struggled in the past to classify themselves in the traditional, rigid immigration framework. Until Congress creates an entrepreneurial visa classification, we will have to rely on the government’s attempt to create more flexibility in an otherwise rigid immigration structure. Our hope is that foreign entrepreneurs will finally be able to successfully navigate through the murky waters of United States immigration.