Invest Visa/Entrepreneur Visa Chart (Startup Visa, EB6, X-visa)

The newly proposed Invest Visa, formerly known as the Startup Visa, creates two new visa categories: X-visa and EB6 visa.  Here is a visual aid to understanding it better. In my opinion, this is an important and commendable addition to the bill.  See today’s Wall Street Journal article on the topic. http://blogs.wsj.com/venturecapital/2013/06/05/why-vcs-and-foreign-founders-want-the-entrepreneur-visa/

Here is a chart I created to help summarize the provisions. So many people have asked me about this that the chart should give a good easy overview of the new visas.  I still believe some amendments are necessary.  More to come on that in the next few weeks, stay tuned! We would love to hear from you if you have thoughts about the Invest Visa.  In addition, if you want to support these provisions, then please email me at tahmina@watsonimmigrationlaw.com.  We would love to hear from you.

Invest Visa Flowchart created by Tahmina Watson

Invest Visa Flowchart created by Tahmina Watson

Startup Visa Provisions under Comprehensive Immigration Reform Bill 2013!

he comprehensive immigration reform bill 2013 finally provides the long and anxiously awaited Startup Visa Act provisions.  Titled – Investing in New Venture, Entrepreneurial Startups and Technologies, the provisions include a non-immigrant visa category and an immigrant visa category.

qualified entrepreneur can apply for this visa.  A qualified entrepreneur means:

  1. Has significant ownership in a US business
  2. Is employed in a senior executive position
  3. Submits a business plan to the USCIS, and
  4. Had a substantial role in the founding or early stage growth and development of such US business entity.

Invest Non-Immigrant Visa:

  • Initial admission for 3 years
  • May be renewed for an additional 3 years, if during the most recent 3 year period alien did the following:
    • Created at least 3 full-time jobs AND received $250,000 qualified investment.

OR,

  • Created at least 3full-time jobs AND during the 2 year period ending on the date extension applied for generated at least $200,000 annual revenue.
  • May obtain a renewal for up to 2 one-year periods for a waiver from the above if the alien has made substantial progress and that such renewal is economically beneficial to the US.

Invest Immigrant Visa: There are 2 types:

First

  • Must be qualified entrepreneur
  • Maintained valid non-immigrant status in the US for at least 2 years.
  • During the 3-year period ending on the date extension filed alien has
    • Significant ownership in a US business entity that has created at least 5 full-time jobs AND has received $500,000 qualified investment in the alien’s business.

OR,

  • Has significant ownership in US business that created at least 5 full-time jobs AND generated at least $750,000 annual revenue during the last 2 year period. AND, no more than 2 other aliens have  received non-immigrant invest visa status on the basis of alien’s ownership of such business.

Second

  • Must be qualified entrepreneur
  • Maintained valid non-immigrant status in the US for at least 3 years prior to filing for such status.
  • Holds an advanced STEM degree, AND
  • During the 3-year period ending on the date the alien files petition under this section:
    • Alien has significant ownership in US business that created at least4 full-time jobs. AND received qualified investment of at least $500,000

OR,

  • Alien has significant ownership in US business that created at least 3 full-time jobs. AND during the 2-year period ending on such dategenerated at least $500,000.

At first reading, these provisions seem reasonable to me and I think will greatly benefit the US economy.  It does not restrict the type of business entity will have.  There is no percentage of ownership of business. 

As I read more and understand more, I will update this article. In the interim, the above provisions sum up a great addition to immigration reform.

*Copyright 2013 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

 

Why We Need Start-Up Visa Laws for Immigrant Entrepreneurs

 The below article was originally published on Watson Immigration Law Blog. The article drew attention from Yahoo! News, The San Francisco Chronicle, The Boston Globe and many other press outlets. 

Why We Need Start-Up Visa Laws for Immigrant Entrepreneurs

–          Tahmina Watson, immigration attorney

With the recent election, America’s voters have placed renewed trust in President Obama, and immigration remains a hot topic.  In the days following the election, there was already chitter-chatter about comprehensive immigration reform in 2013. Wouldn’t that be great! I will look forward to this dream finally becoming a reality.  In the meantime, I hope the effort to accommodate immigrant entrepreneurs will continue.

This is not a complex issue; in fact, it can be distilled to a single cogent point: there is global competition for immigrant entrepreneurs. Every country wants the next Facebook, Google or Microsoft founder. The United States is in this bid for top talent too, except that the US is very slow in acting, and as a result, companies in the US are failing to recruit and maintain many talented people. 

Students from all over the world come to the US to be educated at the best schools, but they are not allowed to remain in the US—either because there is no suitable visa or not enough of the existing visas. As a solution to this specific problem, the  Science, Technology, Engineering and Math (STEM) Jobs Act introduced on September 18, 2012 by Rep. Lamar Smith created a new visa category for foreign PhD and Masters-level graduates in the STEM fields. Regrettably, the bill failed miserably at the time. However, the bill was approved by the House on November 30despite strong opposition from the Obama administration and now there may be hope it could pass through the Senate. Time will tell.

Perhaps even more frustrating is the fact that the path to a green card is excruciatingly difficult and slow, even for someone lucky enough to have obtained a work visa.  The past year has seen some erratic movement in visa availability. Visa availability is based on the Visa Bulletin, a monthly report issued by the Department of State and divided into ‘all countries,’ ‘India,’ ‘China,’ ‘Mexico’ and ‘Philippines.’ It is also divided into preference categories based on educational level. For example, categories include employment-based (EB) first preference (someone who has extraordinary qualifications such as winning a Nobel prize), second preference (someone with an advanced degree), third preference (someone with a bachelor’s degree) and so on. Also, the number of visas available varies according to the number issued in the previous month. Unfortunately, this can result in a decades-long wait. To reduce such waiting times, The Fairness to High-Skilled Immigrants Act introduced on September 22, 2011 by Rep. Chaffetz , sought to eliminate the per-country numerical limitations for employment–based immigrants and change the per-country numerical limitations for family-based immigrants. The bill failed.

Take, for instance, what happened in July 2012. The Visa Bulletin reported a three-year retrogression in the EB second preference category for ‘all countries.’ This particular category traditionally has not had any wait. Visas only became ‘current’ or ‘available’ in November 2012. This blow came soon after an announcement that there were simply no visas available for people with advanced degrees from India and China. The system is clearly in need for an overhaul; it does not provide viable options for entrepreneurs.

Various versions of the Start-Up Act provide visas and green cards specifically for entrepreneurs. In 2010, Senators John Kerry and Dick Lugar introduced the original Start-Up Act. In 2011, a variation of the bill was introduced by Sen. Jerry Moran to no avail.  And in May 2012, Senators Mark Warner, Marco Rubio, Chris Coons and Moran introduced the Start-Up Act 2.0. But none of these has been enacted as law. For anyone wondering why we need new law, here is a summary of the existing options for the self-employed entrepreneur:

EB5 Immigrant Investor visa:

The current investor visa program established in 1990, allows for immediate permanent residence for those who: (1) invest $1 million in any business in any part of the US and generate 10 jobs; or (2) invest $500,000 in a targeted employment area or a regional center and generate 10 new full-time jobs.  The law defines a targeted employment area as either rural or in a location of high unemployment. 

The bootstrapped, hardworking, talented and creative entrepreneur generally does not have the amount of money required here. This visa is for the investor who is not interested in being the next Facebook founder, who wants to ‘dump’ money in a safe and successful project that will allow him or her to fulfill the requirements to obtain a green card.

The E-2 Treaty Investor visa:

Citizens of countries with which the US maintains a treaty of commerce and navigation can apply for the E-2 visa.  This is a great visa for someone with the financial ability to open a business in the US.  Yet it has its limitations. The amount of money required for a successful visa is around $100,000.00 minimum, even though the law simply requires a ‘substantial’ investment. More importantly, the visa only enables one to own and run the business, so it is not a path to permanent residency.  As long as you have the business, you are permitted to live and work in the US.  The second problem is that not all countries maintain the required treaties with the US. So, the majority of graduates and high-skilled workers coming from India and mainland China are not eligible for the visa. I see many clients who are otherwise eligible but cannot benefit from this visa.

H-1B Specialty Occupation:

In August 2011, the US Citizenship and Immigration Services (USCIS) announced a policy shift in approving business owners to apply for H-1B visas with proof of an employer-employee relationship \ between the owner and the company. The new policy has been a success and many entrepreneurs have benefited.   

However, there are still problems with the policy.  H-1B visas have many stringent requirements, including proof that the owner will be paid the prevailing wage as a salary. The typical start-up company does not always have the funds for this. In addition, USCIS has challenged practically every aspect of such petitions. This has resulted in denials even for obviously approvable cases.

L-1 intracompany transferee:

This is a well utilized visa allowing certain personnel to transfer from a foreign branch to the US as long as they have worked for the foreign branch for at least one year in the past three. However, recently almost all L visas for new companies have faced incredible scrutiny and unreasonable denials.

This visa simply does not fit the circumstances of most entrepreneurs. An applicant must have worked in an overseas branch of the company for at least one of the last three years, whereas most entrepreneurs who want to open a business in the US are either present as a student or on other visa and not transferring from a foreign branch to the US.

O-1 visa:

Dubbed the ‘genius’ visa, the O-1 visa is reserved for those who can prove that they are at the top echelon of their profession and are indeed ‘extraordinary’. Some of the requirements include proving that the applicant has acquired national or international acclaim, that they have been written about in the media, that they have judged people in their expertise, they made significant contribution in their field, etc.

However, the evidentiary documentation to prove such a high burden is extremely difficult. In addition, not all entrepreneurs would be able to fulfill such requirements because starting a new company does not necessarily require one to be a ‘genius’.

National Interest Waiver for entrepreneurs: 

When the above H-1B policy change was announced, the USCIS also announced that they would allow entrepreneurs to apply for green cards under the existing National Interest Waiver (NIW) law. NIW is typically utilized by medical researchers who can prove that their research will benefit the nation (for example, finding a cure for cancer). The new policy suggests that if an entrepreneur can demonstrate that her business will benefit the economy on a national level, she will be approved for permanent residency. 

In theory, it makes sense to utilize existing laws while new laws are being debated. The approach is commendable. However, as yet there are no success stories. In a recent inquiry made with USCIS, I was informed that there is no way to identify such cases.

Nevertheless, the biggest problem in these petitions is a more fundamental issue: whether the entrepreneur can prove that his or her venture will have nationwide benefits. In my opinion, a typical start-up company may generate jobs locally, but may not be able to meet the waiver’s requirement that the benefit be national in scope.

There is an additional problem. NIW falls under the EB2 preference which typically has a several year waiting period for citizens of India and China.  Many of my clients are from India and they are often already in the visa waiting game as described above in EB2 or EB3 preference categories.  Applying for NIW does not assist them obtaining a green card faster.

Entrepreneurs in Residence (EIR):

To its credit, the USCIS has been working on an initiative called Entrepreneurs in Residence (EIR), launched in February 2012. The initiative seeks to evaluate current laws and regulations so that the Service can create policy updates for existing visas in accordance with the modern and practical business world. For example, the program will assess whether there is a way in which one can apply for an H-1B visa and perhaps show stocks and equity in the business instead of cash in the bank for wages.

While I commend and welcome the EIR initiative as an interim solution, the system is not quick. On November 28, 2012, the USCIS launched ‘Entrepreneur Pathways’, an online resource guiding immigrant entrepreneurs about various visa options. The White House blogged about the intention to have fair adjudications on such petitions as did the USCIS on its blog. However, as yet there is no legal guidance on how existing laws will be interpreted to help meet stringent visa requirements. Hopefully, legal guidance is imminent.

* * *

Each of the above visas has its place in the immigration system.  The existing visas work well for certain cases. However, they are not suitable for the average immigrant who wants to start a new business venture, who seeks to grow the business and create new jobs. All the visas above assume that a huge amount of money is required to create a new business. Perhaps traditionally that was the case. But in the modern world of snazzy technology and broadband internet, one does not need much money to start a successful business. Facebook and Google are examples of such success, started by founders during college and graduate school, respectively.  Immigration policies must reflect that too.

Therefore new laws are essential in holding onto the talented people who can create jobs and boost our economy. A version of the Start-Up Act is likely to do just that. It is a win-win solution for both the immigrant and the US. I urge Congress to take this issue seriously and pass new laws as soon as possible to help the US to maximize the competitive advantage engendered by the hard work and new know-how in the hands of highly capable foreign entrepreneurs. Growth of the US economy will depend on it.

Tahmina Watson is an immigration attorney and founder of Watson Immigration Law in Seattle Washington. Her practice has a strong focus on immigrant entrepreneurs and start-up companies. She can be contacted at tahmina@watsonimmigrationlaw.com. You can visit www.watsonimmigrationlaw.com to learn about Tahmina and her practice.

Entrepreneur in Residence: Entrepreneur Pathways by USCIS

The United States Citizenship and Immigration Services Director Alejandro Mayorkas unveiled a new online portal for entrepreneurs under the USCIS Entrepreneur in Residence program last week.  The portal is essentially an information source for entrepreneurs for immigration purposes. They have named it Entrepreneur Pathways.  It outlines all options that exist under the current laws that may be suitable for entrepreneurs starting new companies in the United States. 

This is indeed helpful for the foreign entrepreneur to consider various options open to him.  From my legal-eagle attorney perspective, I was hoping to see guidance on how existing laws will be utilized for these visa options that allow flexibility of the stringent rules.  I hope guidance will follow soon. When it does, we will duly post the information here. 

What is an H-1B visa?

H-1B visas are the one of the most popular employment-based visas in the United States.  These are for skilled professionals.  There is an annual numerical limit of 65,000 for H-1B visas and an additional 20,000 H-1B visas for foreign nationals holding U.S. advanced degrees.

H-1B visas are valid for up to three years. Maximum time allowed is six years.  Once an H-1B visa is approved, the foreign national can change employers without falling within the numerical cap again. There are limited exceptions allowed for extending an H-1B visa beyond the six years until permanent residency is obtained.  

Generally, an employer must sponsor the H-1B visa.  Since August 2011, one can apply for a self-employed H-1B visa. More information about this will follow in a different post. 

What visa options are available for working at a start-up company?

There are several employment-based visas available under the current immigration laws.  Generally, an employer must sponsor the employee for such a visa. Each visa has specific requirements depending on the nature of the employment.  The options may also depend on the when you want to start working.  The most popular work visa, for example, an H1b visa is only available from October 1st of each year (more information to follow on this visa in a different post). Other visas that might be suitable are O, L, E, or TN visas. It is best to consult an immigration attorney to understand the various options available and the best option for you. 

Why is immigration law important for a start-up company?

Black’s Law Dictionary defines immigration as “the coming into a country of foreigners for purposes of permanent residence”. Immigration law is a the set of federal laws that govern immigration. How immigration law affects you depends on your role at the start-up company. 

If you are the owner of the start-up company and you are a U.S. citizen, then you might need to know what visas are required for possible employees.  If you are the owner or partner of the start-up company and you are NOT a US citizen, you will need to know your visa options to work at your Start-Up Company.  If you are an employee, you need to know what visa options are available so that the start-up company can sponsor you.

One must always have a valid visa to work in the United States. So, whatever your status is in the U.S. and whatever your role is at the start-up company, immigration law should be one of the top considerations. 

What is Start-Up Act 2.0? (Immigration Bill for Entrepreneurs)

Passport

Immigration law is undoubtedly a controversial subject. As a start-up business owner who is not a US citizen, you must first think of an appropriate visa that will allow you to legally work in the US.  Currently, there is no perfect visa for start-up owners (I will write about options available at the moment at a later date). Congress is aware of this problem and there are several bills of interest pending.

The bill of most interest for entrepreneurs is called the Start-Up Visa Act 2.0 which was introduced in May 2012. It is based upon the Start-Up Act introduced by Sen. Moran and Warner last year. U.S. Senators Marco Rubio (R-Fla.), Chris Coons (D-Del.), Jerry Moran (R-Kan.) and Mark Warner (D-Va.) along with Steve Case, Revolution LLC CEO and member of President Obama’s Council on Jobs and Competitiveness, and Robert Litan of the Ewing Marion Kauffman Foundation, unveiled this bipartisan legislation.
Among other things, the Start-Up Act 2.0 aims to do the following:
1. Create an Entrepreneur’s Visa for legal immigrants.
2. create a new STEM visa so that U.S.-educated foreign students who graduate with a master’s or a doctorate in science, technology, engineering or mathematics can receive a green card and stay in this country, launch businesses and create jobs.
3. It eliminates the per-country caps for employment-based immigrant visas.

Here is a link to what the senators said about the bill when it was introduced. We will update you as more information becomes available. Watch this space!