News

On August 2, 2011, the Obama Administration and USCIS announced new policies to encourage foreign entrepreneurs to remain in the United States in hopes that their efforts will create jobs through start-up companies and investments. The new policies include the following:

Premium Processing for Multinational Manager/Executive Petitions

The changes will include expanding premium processing services to include Form I-140 immigrant worker petitions for multinational managers/executives in the first employment-based preference category, known as EB-1(3). Premium processing is a 15-day processing service offered for an additional fee of $1,225. Since 2006, premium processing services have been offered to most I-140 petitions including EB-1, EB-2 and EB-3 cases, but was never before extended to include multinational manager/executive cases.

USCIS has not given an exact date when premium processing will be expanded to include the multinational manager/executive petitions.

H-1B’s for Business Owners

USCIS has issued a clarification of its policies on the relationship between the employer and employee in H-1B cases, in an effort to ease restrictions that had limited the ability of business owners to qualify for H-1B visas.

Since 2010, USCIS has taken the position that for a business owner to qualify for H-1B, the employer must demonstrate that the company has the right to control the H-1B employee. As such, when the beneficiary is self-employed or has an ownership interest in the business, the H-1B petition must show that the petitioning company is separate and distinct from the beneficiary, such that an employer-employee relationship exists. Hence, if there is no separation between the petitioning company and the beneficiary, and there is no evidence that that the business entity, and not the individual, will control the H-1B work, then the H-1B might be denied.

Before 2010, USCIS held to the long-standing policy that recognized that a corporation is a separate entity from its owner, even if it was owned and operated by a single person, and could serve as an H-1B sponsor.

The new clarification does not reverse USCIS’ 2010 position regarding business owners. Instead, it states that where the petitioner has the right to control the employment of the entrepreneur/beneficiary, then H-1B may be granted. An example would be where a Board of Directors has the ability to hire, fire, pay, supervise or otherwise control the beneficiary.

Entrepreneurs and EB-2 Permanent Residence Category

USCIS has issued clarification that entrepreneurs may also be eligible for the second employment-based immigrant preference category (EB-2) as a professional with an advanced degree (master’s or higher) or as a foreign national of exceptional ability in business, sciences or the arts.

USCIS also suggests that entrepreneurs could also be eligible for EB-2 classification under the national interest waiver (NIW) without the need for a job offer of labor certification. The applicant would have to demonstrate that their activities will substantially benefit the national economy, culture or educational interests or welfare of the United States. In the recent past, the NIW waiver has been a very difficult case to get approved. However, USCIS suggests that an entrepreneur could show a substantial benefit to the welfare of the United States if his or her business would create job opportunities for US workers or generate economic growth.

Investment Greencards

USCIS is planning to streamline the way it administers the immigrant investor program (EB-5) including reducing processing times and allowing premium processing for certain investment cases. The EB-5 includes investments of $1 million or more into a new enterprise in the US; or $500,000 into a new business in an underdeveloped area of the US. The green card is granted for 2 years and will only be made permanent if the business can show it employs 10 America workers by that time.