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USCIS EIR Updates on Start-Up and Visas

On November 28th, USCIS announced a new online portal for entrepreneurs called theEntrepreneur Pathways.  If you haven’t taken a peek at it, now might be a good time to see what USCIS has been up to with regards to start-up related visas.

I asked Brad Feld, Managing Director of the Foundry Group in Boulder, Colorado, what he thought about USCIS’ recent website launch.  He says, “It’s a positive step,” but cautions, “So much more needs to be done.” Mr. Feld knows a thing or two about start-ups because he manages a venture capital firm with heavy investments in the technology sector.  “At the minimum USCIS is trying to bring visibility to the process and educate both people looking for a visa as well as internal USCIS folks around the overall process.”

As a long-time proponent for start-up visas, Mr. Feld echoes many concerns raised by other entrepreneurs such as Tarik Ansari, who produced a video expressing the frustrations many foreign entrepreneurs in the U.S. faced when attempting to navigate the visa process. After the launch of the Entrepreneur Pathways website, USCIS followed up with a stakeholder meeting on December 12th to discuss the Entrepreneurs in Residence (EIR) Initiative.

Since the announcement of the EIR Initiative over a year ago, the EIRs have visited many entrepreneurial hot spots, including Silicon Valley, MIT, Georgia Tech, as well as visits to all of the six different USCIS services centers to provide strategic training to USCIS officers. At the California Service Center, training has been provided to more than 300 officers, including specialized teams, on reviewing evidence and Request for Evidence (RFE) templates.  The basis of the training program was to better equip adjudicators with the standards that are normal to evaluating the viability of a start-up organization. Moving forward, USCIS intends to provide quarterly opportunities for engagement with the public on the EIR Initiative.  It will continue to visit entrepreneurial hot spots, including Austin and Boston, in order to discover ways to reach entrepreneurial stakeholders and engage in ongoing dialogue.  (I recommend answering questions on Twitter, Reddit or Quora!)

When specially asked what some of the concrete ideas that EIR has learned and parlayed to the start-up program, USCIS responded by indicating the following factors have been an integral part of its core learning and training.  More in depth training details may (or may not) be released to the public:

  • Understanding how start-up entities are structured
  • Understanding the various stages of growth
  • Differentiating between different types of funding
  • Understanding how to review financial documents commonly associated with start-up entities (such as a profit and loss statement)
  • Being able to assess whether proposed means for financing is consistent with industry best practices

In particular, USCIS intends to expand the scope of the EIR initiative to include analysis of immigrant visa petitions.

With this announcement, USCIS opened up the meeting to respond to questions.  Attendees were eager to provide comment and suggestions: In terms of expanding to the immigrant area, attendees wanted to know the parameters of adjudicating immigrant petitions, especially with USCIS’ announcement in past years about expanding the National Interest Waiver to entrepreneurs.  The suggestion from the audience was to allow a more flexible standard of review, particularly of the Ability to Pay in light of “venture capital projections on revenue streams and other speculative aspects of entrepreneurial enterprises.”

This is an area where entrepreneurs will likely have varying ideas on funding at the one-year, two-year and three-year markers for their companies. Other attendees expressed concern about current methods for evaluating non-immigrant petitions (H-1B, O-1s, etc.)  For example, in the context of Extraordinary Ability filings (O-1A), many entrepreneurs have difficulty demonstrating the enumerated categories.

By its very nature, the entrepreneurial paradigm expects a certain level of failure but when pitted against the O-1 peg, the pieces just don’t’ fit. Meanwhile, other attendees expressed dissatisfaction at the suggestion on the Entrepreneur Pathways website that an H-1B was a viable method for obtaining a start-up visa when in reality, the Neufeld Memo of 2010 makes it very difficult for start-up entities to petition on behalf of their founding members.

One Silicon Valley attorney mentioned that in practice, it’s been extremely difficult to successfully procure an H-1B visa for a start-up founder in 25 years of practice and that the expectation of receiving an RFE was very high on these types of cases. The issue of RFEs was a sore subject and reignited the discussion of “H-1B fraud indicators” which USCIS had issued internally to its adjudicators that essentially flagged smaller companies for issuance of RFEs.

As one can imagine, this guidance disproportionately affects start-ups and entrepreneurs. One related suggestion was for USCIS to strategically coordinate with the Department of Labor on immigrant petitions to dispel any suspicions or prejudices held by the Department of Labor against entities that are sponsoring their owners for a greencard. What other concerns do you think should be addressed for future quarterly EIR Initiative stakeholder meetings?

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