Immigration Initiatives for
Foreign Entrepreneurs
SIPA - Entrepreneurship – Idea Wave 3.0

Sweta Khandelwal
Attorney-At-La...
Agenda

Focus of today’s discussion

• Discuss availability of EB-2 & National Interest Waiver (NIW)
for Entrepreneurs
• C...
So, what’s new?
On August 2, 2011, USCIS announced initiatives to promote start-ups
Entrepreneurs
to qualify for
EB-2 & NI...
Immigrant entrepreneurs and the EB-2
Immigrant Visa (IV)
Elaborated further

Policy changes

What is the EB-2 Immigrant
Vi...
Understanding “exceptional ability” &
“cultural/educational interest” and
“welfare of the US”
“I am an entrepreneur
– I mu...
National Interest Waiver
Policy Changes
• FN must first be eligible for EB-2
• FN entrepreneur will qualify for NIW
if bus...
H-1B Guidance
The Neufeld Memo

THEN
USCIS issued guidance in January
2010 (the Neufeld memo) which
placed a greater empha...
Premium Processing
Business petitioners
may choose to pay a
special fee to obtain
expedited processing of
their cases. USC...
EB-5
EB-5 makes 10,000 visas
available annually to
immigrant investors who
invest in commercial
enterprises that create at...
Follow-up actions by USCIS
• Public engagements: with entrepreneurs and
stakeholders for input and feedback

• Modificatio...
Proposed Legislation
Immigration Driving Entrepreneurship
in America (IDEA) Act of 2011
 Attracting innovations and job c...
What’s in store?
Changing legal environment

• Shift in policy
implementation- USCIS
efforts to ensure that
“potential of ...
For questions, contact:
The Law Office of Sweta Khandelwal
sweta@khandelwalaw.com
Phone: 408 423 8272; 408 505 2065
www.kh...
LEGAL DISCLAIMER
The information provided is intended for informational purposes only and does not substitute for a
lawyer...
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Immigration Incentives for Foreign Entrepreneurs

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This presentation explains the various US visa options/alternatives that are available to foreign entrepreneurs, specially those of Indian origin. This presentation was given at Silicon Valley Indian Professional Association's Annual Conference in November 2011.

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Immigration Incentives for Foreign Entrepreneurs

  1. 1. Immigration Initiatives for Foreign Entrepreneurs SIPA - Entrepreneurship – Idea Wave 3.0 Sweta Khandelwal Attorney-At-Law Principal Attorney at Law Offices of Sweta Khandelwal November 12 , 2011
  2. 2. Agenda Focus of today’s discussion • Discuss availability of EB-2 & National Interest Waiver (NIW) for Entrepreneurs • Clarify the updates on H-1B for sole shareholders • Highlight extension of Premium Processing to (i) EB-1 for Executives/Managers of MNC’s (ii) EB-5 • Explain the streamlined EB-5 process • Educated on the increased involvement of the Office of Public Engagement
  3. 3. So, what’s new? On August 2, 2011, USCIS announced initiatives to promote start-ups Entrepreneurs to qualify for EB-2 & NIW • Immigrant entrepreneurs may obtain an EB-2 immigrant visa & may also qualify for a National Interest Waiver Sole shareholders can get H-1B • Sole employee-entrepreneur can establish an employer-employee relationship for an H-1B visa. PP extended; EB-5 simpler; Feedback open • Premium Processing extended to immigrant petitions for executives/managers of MNC’s • EB-5 process streamlined based upon stakeholder feedback • New engagement opportunities launched to seek input/feedback to address the unique circumstances of entrepreneurs, new businesses & startups.
  4. 4. Immigrant entrepreneurs and the EB-2 Immigrant Visa (IV) Elaborated further Policy changes What is the EB-2 Immigrant Visa Employment-based 2nd preference (EB-2) IV is available to: • FN with advanced degrees (occupation must be a profession) • FN of exceptional ability (arts/sciences/business) • Must benefit US economy, cultural/educational interests, or welfare of the US • FN must have a job offer • FN’s sponsor must (usually) file a Labor Certification with the DOL Key Implications  The company founded/cofounded by the entrepreneur, or in which the entrepreneur has a stake can now sponsor the entrepreneur’s IV/GC.  The company and entrepreneur must comply with all statutory requirements  A job offer from the company is required – a Labor Certification must be filed with DOL
  5. 5. Understanding “exceptional ability” & “cultural/educational interest” and “welfare of the US” “I am an entrepreneur – I must be an Ivy League dropout, not someone with a degree” • No rule of law that a specific kind of evidence is required • Key is the quality and relevance of evidence submitted “How does my mobile application benefit the national economy, cultural or educational interests, or welfare of the US?” • “Welfare” not defined in the statute • Relative concept • Limited precedent available • Creative lawyering works 
  6. 6. National Interest Waiver Policy Changes • FN must first be eligible for EB-2 • FN entrepreneur will qualify for NIW if business will create jobs for U.S workers or enhance US welfare. • Three pronged test to understand eligibility for NIW 1. 2. 3. Employment is in an area that has substantial intrinsic merit – focus on area of employment rather than qualification Proposed benefit is national in scope (e.g. jobs created locally will also create related jobs elsewhere in the country) Presents a significant benefit in the field of endeavor identified in 1 (above) Key Implications  No job offer is required from any company (not even your own)!  No Labor Certification is required to be filed.  Entrepreneur can petition for himself/herself and is both petitioner and beneficiary
  7. 7. H-1B Guidance The Neufeld Memo THEN USCIS issued guidance in January 2010 (the Neufeld memo) which placed a greater emphasis on documenting the employeremployee relationship than in the past. This made it extremely difficult for individuals with an ownership interest in the petitioner to obtain a H-1B Visa. NOW An beneficiary, who is the sole owner of the petitioner company, may be able to establish a valid employer-employee relationship for H-1B purposes. Company’s right to control a sole owner/shareholder employee can be demonstrated through a separate BOD that can hire, fire, pay, supervise or otherwise control the beneficiary. .
  8. 8. Premium Processing Business petitioners may choose to pay a special fee to obtain expedited processing of their cases. USCIS is required to process the petition within 15 calendar days. • USCIS is expected to open premium processing for EB-1 multinational manager/executive petitions w.e.f early 2012 • Premium processing is currently available for EB-2 and EB-3 IV • Premium service is not currently available for NIW
  9. 9. EB-5 EB-5 makes 10,000 visas available annually to immigrant investors who invest in commercial enterprises that create at least 10 U.S. jobs. Investors may petition independently or as part of a USCIS designated Regional Center. • Extending the availability of premium processing for certain EB-5 petitions • Implementing direct lines of communication between the investors and USCIS • Providing investors with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in the petition.
  10. 10. Follow-up actions by USCIS • Public engagements: with entrepreneurs and stakeholders for input and feedback • Modification in internal policies and guidelines: by incorporating input from public engagements • Internal training for USCIS staff : on the unique characteristics of entrepreneurial enterprises and startup companies
  11. 11. Proposed Legislation Immigration Driving Entrepreneurship in America (IDEA) Act of 2011  Attracting innovations and job creators: EB-1 GC for STEM  Exempts STEM Degree Holders from Cap Gap  Students can have Dual Intent  New green card category for entrepreneurs who establish new start-up businesses either through VC or self funded  Eliminating Employment-Based Per Country Levels  Premium processing for all employmentbased immigrant petitions and applications, including any administrative appeal any such petition or application.  Increased Portability for H-1B Employees  Simplify the EB-5 visa Latest Major Action: 9/8/2011: Referred to House subcommittee. Start-Up Visa Act of 2011.  Provides a 2 year conditional visa  Modifies the EB-5 Visa  Allows non-US entrepreneurs with funding from a US investor to get a visa to start a company  Visas available to entrepreneurs living outside the U.S (at least $100,000 to come from a US investing entity), H-1B workers, STEM graduates (at least $20,000 to come from a US investing entity) under certain conditions  More than 160 venture capitalists from across the country have endorsed the proposal.
  12. 12. What’s in store? Changing legal environment • Shift in policy implementation- USCIS efforts to ensure that “potential of existing laws are fully utilized” • Limited precedent available: require a creative and customized approach to each case Entrepreneur guidelines • Explore all available options • Stay tuned for the legislative updates
  13. 13. For questions, contact: The Law Office of Sweta Khandelwal sweta@khandelwalaw.com Phone: 408 423 8272; 408 505 2065 www.khandelwalaw.com
  14. 14. LEGAL DISCLAIMER The information provided is intended for informational purposes only and does not substitute for a lawyer. This information does not constitute legal advice. We ask that you consult with an immigration lawyer, as your facts are unique and because each situation requires analysis from many different perspectives. We cannot be responsible if you rely on information based on this website without the consultation of an immigration attorney.
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