Updated: December 11, 2018
The enormous US market for goods and services presents businesses of all sizes with attractive opportunities for enhanced growth and success. The immigrant entrepreneur is a powerful catalyst for innovation and growth but can find it hard to secure a visa that will allow him the time and space in the United States to develop his ideas and business.
Although business and employment practices have evolved due to the increased use and impact of technology, US immigration laws and their interpretation by the US Citizenship and Immigration Services (USCIS) remain mired in the old economy of bricks-and-mortar business premises, traditional employer-employee relationships and multi-layer hierarchical organizational structures. The small business or start-up that has no formal office space, a relatively flat organizational hierarchical structure, several freelancing employees, or modest levels of initial funding and investment has historically faced an uphill struggle in trying to sponsor and secure US work visas for key non-US citizen founders or workers. In addition, many US work visas require sponsorship by a qualifying US employer, leaving few visa options for individuals who wish to be self-employed or to freelance. To add insult to injury, a person who invests in a US business may find that regardless of how successful the business and how many US workers he employs, he and his family cannot use the business as a route to lawful permanent resident (‘green card’) status. (On this last point, see our website article Treaty Traders (E-1) and Treaty Investors (E-2).)
Fortunately for persons who wish to start businesses in the US there are some signs that as the world economy improves the US Government is starting to recognize that it is competing with other countries to attract and retain entrepreneurs. The USCIS has produced publicly-available materials to help entrepreneurs understand various visa categories and has trained its officers on the life cycle of start-up enterprises including business fundamentals, stages of a start-up, funding and sources of capital.
In November 2014, President Obama announced plans to reform the immigration system and to make it easier for high-skilled immigrants, graduates and entrepreneurs to stay in the US and contribute to the economy. The Secretary of Homeland Security and the Attorney General were directed to undertake a rigorous review of business immigration and propose recommendations for reforming the immigration system through executive action. In turn, the Secretary of Homeland Security directed the heads of the USCIS and of US Immigration and Customs Enforcement to modernize, improve and clarify immigrant and nonimmigrant visa programs in a number of ways, including:
- Working with the Department of State to ensure that all immigrant visas authorized by law are issued, where there are qualifying applicants;
- Specifying more clearly the circumstances under which persons waiting for green cards can change jobs without losing their place in the queue;
- Issuing guidance as to the requirements for a ‘national interest waiver’ permitting persons with exceptional ability or advanced degrees to petition for green cards without the need for an employer sponsor;
- Authorizing parole (special permission to enter the US) to eligible inventors, researchers and founders of start-up enterprises; and
- Bringing greater consistency to L-1B visa adjudication by providing clearer guidance on the meaning of ‘specialized knowledge’ in the L-1B visa context.
It is encouraging to see that policies are now being developed to support foreign nationals who wish to bring their intellects and start-up businesses to the United States. (Immigrants are nearly twice as likely to start businesses in the US as are native-born Americans.)
The US population, both US citizens and non-citizens, will benefit from the expansion of products, services and employment that such businesses will bring—but only if ways can be found to ensure that the people with the ideas and ambition behind those businesses are given the opportunity to join the US market and assured of long-term, stable futures in the United States.