In 2014, President Obama issued an Executive order making it easy for Entrepreneurs to get visas. However until this past Friday, the Citizenship and Immigration Service (hereinafter CIS) did not issue any guidance as to how this could be achieved. For instance, a computer science major foreign student, studying in the USA, might come up with an idea that would revolutionize current thinking. They might want to build a startup. Right now the only option is an H-1B visa, which is restricted to only 65,000 per year and subject to a lottery. But even if an entrepreneur manages to win that lottery number, the CIS will frown upon the fact that the entrepreneur will own the company that is petitioning for him. They also want the US entity to show capital to demonstrate the ability to pay the Entrepreneur/Employee the proposed H-1B salary. The problem is that banks/venture capitalists won’t lend capital to an entrepreneur without legal status. So it’s a catch 22 situation that doesn’t work.
Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:
Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
Whose startup was formed in the United States within the past three years; and
Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
Receiving significant awards or grants (at least $100,000) from certain federal, state or local government entities; or
Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.
Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entity in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue or job creation. The notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received.
Note:
1. The proposed rule does not take into effect immediately. It typically takes the Government quite a few months after the comment period to adopt the rule. I personally don’t think this will happen before 2017
2. The rule does not grant permanent status as of now. It just gives temporary stay of up to 5 years
3. Both the Democrats and the Republicans support this rule.
4. This would have been law, due to bipartisan support, but the Democrats wanted “Comprehensive” Reform and not the piecemeal legislation
5. Thus I expect this rule to continue no matter who our next President is.
For more information contact Annie Banerjee
