USCIS Initiatives to Increase Investment in the U.S.

USCIS Initiatives to Promote Startup Enterprises and Spur Job Creation

On August 2, 2011, Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas outlined a series of policy, operational, and outreach efforts to fuel the nation's economy and stimulate investment.

Background
This initiative is a result of Startup America, a White House-led initiative to reduce barriers and accelerate growth for America's job-creating entrepreneurs and of key focus of the President's Council on Jobs and Competitiveness to ensure that America stays at the top of its game in the global investment economy. The President's Council on Jobs and Competitiveness (Jobs Council) was created to provide non-partisan advice to the President on continuing to strengthen the Nation's economy and ensure the competitiveness of the United States and on ways to create jobs, opportunity and prosperity for the American people.

EB-2 National Interest Waivers for Entrepreneurs
Entrepreneurs may obtain an employment-based second preference (EB-2) immigrant visa if they satisfy the certain regulatory requirements. In addition, they also may qualify for a National Interest Waiver under the EB-2 immigrant visa category if they can demonstrate that their business endeavors will be in the interest of the United States. To clarify, The EB-2 visa classification includes foreign workers with advanced degrees and individuals of exceptional ability in the arts, sciences or business. Generally, the EB-2 category requires a job offer from a U.S. employer and a certification from the Department of Labor (DOL) that there are no U.S. workers qualified for the job. This is often referred to as the PERM Labor Certification Process and requires extensive recruitment and review of the local labor force where the job is located. The Attorney General can waive these requirements if the employer demonstrates that approval of the EB-2 visa petition would be in the national interest of the United States. Since the term "national interest" has not been defined in the immigration statute, certain (often subjective on the part of the USCIS reviewing officer) factors are taken into account in determining national interest. These factors include improvement of: the U.S. economy; wages and working conditions for U.S. workers; education; health care; the environment; and housing. An interested government agency request is an added factor that is given considerable weight by the USCIS. Since 1998, the National Interest Waiver has been increasingly more difficult to obtain. The new initiative will likely spur an increase in the National Interest Waiver petition requests. However, the scrutiny level is likely to also remain as high as it has been in the past.

H-1B
Entrepreneurs with an ownership stake in their own companies, including sole employees, may be able to establish the necessary employer-employee relationship to obtain an H1-B visa, if they can demonstrate that the company has the independent right to control their employment.

EB-5
The EB-5 immigrant investor program is also being further enhanced by transforming the intake and review process. In May, USCIS proposed fundamental enhancements to streamline the EB-5 process which include: extending the availability of premium processing for certain EB-5 applications and petitions, implementing direct lines of communication between the applicants and USCIS, and providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. USCIS has reported that after reviewing stakeholder feedback on the proposal, USCIS is developing a phased plan to roll out these enhancements. On November 9, 2011, USCIS distributed the first memorandum following this announcement.

Created by Congress in 1990, the EB-5 program stimulates the U.S. economy through capital investment and
resulting job creation by immigrant investors. The Department of Homeland Security (DHS) has estimated that as of June 30, 2011, the program has resulted in more than $1.5 billion in capital investments and created at least 34,000 jobs.

Expansion of Premium Processing to Multinational Manager Petitions
USCIS also announced the expansion of its Premium Processing Service to immigrant petitions for multinational executives and managers. A multinational executive or manager is an employee that is transferred to the U.S. from a related international employer overseas who is coming to serve in a high-level managerial or executive position where the employer is also offering permanent employment to that employee through sponsorship of permanent residence. The premium processing service allows employers to expedite processing of their petitions for multinational managers and executives. Until now, USCIS allowed premium processing on certain types of permanent residence petitions excluding multinational manager petitions. This has hampered the ability of multinational corporations to seamlessly transfer critical employees.

Feedback from the Public
As always, the announcement of these initiatives has caused a lot of anti-immigration naysayers to voice their opinion. Most importantly, these individuals feel that any relaxation of U.S. immigration laws has a severe impact on Americans, particularly unemployed Americans. They fail to realize several important considerations: 1) this type of initiative is not a "relaxation" of immigration laws and are only targeted at a few, very specialized, areas of immigration law; 2) investor entrepreneurship programs such as these were created to, and are meant to, spur job creation in the United States; 3) The job creation has a positive impact on Americans as many of these jobs are not and cannot be filled by foreigners with visas.

Further criticism after the announcement of this initiative comes from immigrants currently stuck in the long queue for obtaining permanent residence. Most of these individuals are skilled workers with at least a Bachelor's or a Master's degree whose employers went through an extensive government-mandated recruitment process to ensure there were no U.S. workers qualified for their positions. Many of these individuals have been caught in these backlogs for more than five years. These are not only key IT personnel but also scientists, engineers and others that are critical to their employers and key to maintaining U.S. competitiveness in the global economy. USCIS has reported that it will continue to solicit input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena.

For more information on this initiative, please see USCIS' published Frequently Asked Questions (FAQs).

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