USCIS/DHS Gets Serious About EB-5

To the ABSOLUTE DELIGHT of the EB-5 Community, on August 2, 2011 Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas just unveiled a series of policy, operational, and outreach efforts “to fuel the nation's economy and stimulate investment by attracting foreign entrepreneurial talent of exceptional ability or who otherwise can create jobs, form startup companies, and invest capital in areas of high unemployment.” To paraphrase, they’re clued in on the fact that slo-mo timelines mean foreign venture capital (FVC) takes a loooooooong time to get to job-starved U.S. communities. I’m linking the Press Release HERE but here are the main points:

• For the first time, they gave legit airtime to Startup America, the White House-led initiative to reduce barriers and accelerate growth for America's job-creating entrepreneurs, is being publicized FINALLY. (Hey, if EB-5 attorneys aren’t aware of it, it isn’t an “initiative”.)

• They talked about the President's Council on Jobs and Competitiveness

An academically-interesting part of the PR was their clarification that entrepreneurship is now officially a gateway to the National Interest Waiver. While cases like this have certainly been approved, it’s the first time the USG comes out and says it welcomes top tier business veterans to consider the NIW.

The single-most simple correction “revelation” involved the reversal of the very dumb policy statement made by USCIS in January of 2010 regarding H-1B entrepreneurs. As any first year law student can tell you, a formed legal entity – a corporation, LLC, etc.- constitutes a “legal person” within the framework of the law. Despite this, and despite the 50+ entrepreneurial H-1B visas I recall from the past two decades – all adjudicated favorably without even a question regarding this issue – last year USCIS decided that an individual could NOT form his or her own company for the purpose of establishing an H-1B situation between the company and the owner. Now, USCIS fixed this (based upon the hounding we all did) and clarified that “an H-1B beneficiary who is the sole owner of the petitioning company may establish a valid employer-employee relationship for the purposes of qualifying for an H-1B nonimmigrant visa”.

Bravo, USCIS, seriously. It shows that Laguna Niguel isn’t the only part of USCIS who’s listening to the stakeholders. I’ve told at least 10 prospective clients in the past year that a sole proprietor H-1B situation would not work…the last client I said this to was YESTERDAY. Your prudent decision will mean that dozens of folks who do not want to be beholden to third party employers will now bring their skill and capital to the U.S. to launch their dreams…and create U.S. jobs!!

But the stuff everyone is yapping about is the ambitious list of plans USCIS has for improving the EB-5:

• extending the availability of premium processing for certain EB-5 applications and petitions

• implementing direct lines of communication between the applicants and USCIS (very welcome but, honestly, they answer when you ask nice (-;)

• providing applicants with the opportunity for an interview before a USCIS panel of experts to resolve outstanding issues in an application. Way cool.

But the part of this that is most notable is their statement that USCIS is “poised to begin implementing the first of these enhancements within 30 days.” Wunderbar!

Last but not least, they spoke of “launching a new series of engagement opportunities for entrepreneurs and startup companies. These opportunities will focus on soliciting input from stakeholders on how USCIS can address the unique circumstances of entrepreneurs, new businesses and startup companies through its policies and regulations in the employment-based arena.” I’m not sure exactly what this means but this is one seasoned old lawyer who greets all of this with high-fives and “hallelujahs!”.

USCIS, you have a very supportive EB-5 bar ready to help you pave the road through these positive changes and we are at your service! Jose