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April 20, 2014

USCIS Entrepreneur-in-Residence Initiative Not Substantive

Actions speak louder than words. This is especially true these days when we see announcements about efforts to revamp our immigration system to encourage investment in the United States. Here is the latest example.

“Entrepreneur-in-Residence” initiative

On October 11, 2012, USCIS Director Alejandro Mayorkas announced an “Entrepreneur-in-Residence” initiative to harness industry expertise for the public and private sectors in order to streamline the immigration process for foreign entrepreneurs. Then, on November 28, 2012, USCIS launched its “Entrepreneurs Pathways” web page with resources for entrepreneurs.

At first glance this seemed to signal that there is now a breakthrough, a real effort at USCIS to encourage entrepreneurship. The stated goal makes a great sound bite:  “As the world’s greatest economy and a global leader in innovation, the United States must continue to welcome and retain the next generation of foreign entrepreneurs who will start new businesses and create new jobs here in America.”

Is this initiative signaling a shift in policy at USCIS?

The answer to this question is no. The reality at USCIS is altogether different. The status quo of USCIS issuing harsh and inequitable decisions in H and L visa petitions for entrepreneurs and emerging businesses has not been changed at all with this initiative.

Adjudicators at USCIS service centers continue to treat visa petitions filed by entrepreneurs and emerging businesses in an overtly hostile manner – throwing up roadblocks wherever possible. The standing guidance on H-1B visa petitions filed on behalf of entrepreneurs who are founders of their own companies requires these entrepreneurs to jump through a number of burdensome administrative hoops to create the appearance of independence from their own companies, simply to satisfy archaic USCIS requirements. And the hostility of USCIS adjudicators to L-1B “specialized knowledge” petitions (filed to secure a visa status for intra-company transferees with unique knowledge of their company’s products or procedures) is at an all-time high.  The government’s attitude towards these petitions is clearly anti-immigrant – the responses to the petitions make it obvious that the government is looking for any possible reasons (including incorrect reasons) to deny these petitions. And recent FOIA litigation has produced documents showing that USCIS has a systemic and institutionalized bias against emerging businesses in the H-1B and L-1 process, where smaller employers are presumed to have a higher incidence of fraud than larger entities.

The materials provided on the Pathways page of the USCIS website do absolutely nothing innovative to enhance opportunities for entrepreneurs to secure visas in the United States.  The web page simply lists the types of visas that are available, and describes them.

USCIS “Entrepreneur-in-Residence” is an empty gesture: actions speak louder than words

Until USCIS officers are instructed to be more open-minded to visa petitions filed by entrepreneurs and foreign companies which have opened offices in the U.S., the status quo will continue, notwithstanding the sound bites touted by USCIS with its Pathways Page and Entrepreneurs-in-Residence program. This initiative needs to be followed up with public and transparent guidance to USCIS targeted at encouraging newer and emerging businesses to operate in the United States. Until this occurs, foreign entrepreneurs and emerging businesses will find the U.S. inhospitable because of visa difficulties.

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About the Author

Susan J. Cohen, Immigration Attorney, Mintz Levin Law Firm
Member and Chairperson of the Immigration Section

Susan is the founder and Chair of the firm’s Immigration Practice, which is composed of 10 attorneys and 15 immigration specialists and assistants who service the immigration needs both of Mintz Levin’s existing corporate and individual clients, and of new clients who choose the firm precisely for its knowledge in the field of immigration and nationality law. Mintz Levin also is committed to handling political asylum cases, most of which are taken on a pro bono basis.

Susan is actively involved in the American Immigration Lawyers Association (AILA) and has chaired and co...

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