A Breath of Fresh EIR from USCIS

They say the squeaky wheel gets the oil but in the case of U.S. immigration, we’ve been dealing with a busted engine for quite a while.  During the past few years, USCIS had increasingly received a barrage of criticism from U.S. businesses, foreign nationals and multiple immigration groups for creating a restrictive adjudicative environment of employment visas.  Some practitioners would go as far as describing this environment as “toxic” for stirring economic growth and promoting entrepreneurship.  The government, however, has maintained that the faltering economy has had a bigger impact on the decrease in employment visa petitions than actual denial rates by USCIS.

Last month, the National Foundation for American Policy (NFAP) released a 20-page reportdetailing the increased denials and delays attributed to USCIS during the past four years.  From 2008 to 2011, denial rates for the most popular business visas, including H-1Bs, L-1s and O-1A visas increased dramatically into double digit percentages!  Request for Evidence (RFEs), notices that are issued to petitioning employers that request additional documents before a final decision is made on a visa petition, have also been generously issued by USCIS, leading to detrimental delays for many employers.  This report contains data that makes it difficult to ignore and further substantiates much of the criticism USCIS has received over the past years. Caught in the middle of this process is a unique breed of tech savvy, social media friendly foreign nationals eager to cash in on the start-up movement.

The traditional temporary employment visas aren’t well suited for their unique goals to start a company in the U.S.  Even if they could secure sponsorship from a U.S. employer, it looks like the current statistics do not bode in their favor.  You can see a video of some of the brightest entrepreneurs and their challenges in trying to obtain work status in the U.S. in order to pursue their start-up ideas.  Out of their frustration began the Start-Up Visa movement capturing the growing sentiment amongst many individuals wanting to effect change in the way the U.S. attracts and retains entrepreneurial talent.  Angel Investor titans worked in concert with Congressional representatives to spearhead new legislation.  Entrepreneurs wanted a visa category tailored specifically to their unique needs but various legislation has either stalled orexpired in previous sessions.

Anyone following this saga between USCIS vs. the foreign workforce probably saw this albatross coming to a head, particularly in a weak economy and an election year on the horizon (and now in full view).  In fact, the tide had turned back in October of last year, when USCIS Director Alejandro Mayorkas finally announced the Entrepreneurs in Residence (EIR) Initiative as a way to address the mounting frustration amongst businesses and entrepreneurs that the status quo was no longer satisfactory in jumpstarting job growth in the U.S.

On February 22, 2012, more than 3 months after its first announcement, USCIS held the first EIRsummit at NASA Research Park in Moffett Field, California, with more than 150 “high-level” representatives from the entrepreneurial community.  For the entrepreneurial community, this might be a breath of fresh air and hopefully the start to a budding new visa category in the making.  We’re all eager to hear what’s to come. Yet, the elephant in the room remains largely ignored by USCIS (for now) like yesterday’s molding bread.  The high rates of temporary work visa denials may not only be a signal of the weakening (and still weak) economy, but perhaps an endemic problem in the way businesses understand the visa regulations versus the way USCIS is applying those regulations in its adjudications.  Will there be common ground and/or a return to the way things were once the economy picks up?  Or have we permanently embarked on a dangerous voyage and thrown away the oars?