USCIS Talks Immigration Law at Silicon Valley's Entrepreneurs in Residence Program

February 25, 2012

This week I attended the USCIS Entrepreneurs in Residence program, held at NASA Research Park in Mountain View, CA. This program grew out of an acknowledgment that the existing U.S. immigration laws for business visas are based on traditional business entities, and don't recognize the dynamic and untraditional business environments of startup enterprises. We still don't have a Startup Visa, and Congress will not be creating one anytime soon. Accordingly, the Entrepreneurs in Residence program is part of an overall USCIS initiative, announced last summer, to promote startup enterprises within the framework of existing immigration law.

The "Entrepreneurs in Residence" part of the program invites in five successful entrepreneurs to educate USCIS adjudicators about the nature of startup business, the language of startups, and just what are the indicia of a legitimate business in startup mode. They will consider how the regular business visas - B: Temporary Visitor for Business; H-1B: Specialty Occupations; E-1: Treaty Trader; E-2: Treaty Investors; L-1: Intracompany Transferees; and O-1, Extraordinary Ability - can be used for entrepreneurs within the framework of existing immigration laws.

Several top-level USCIS leaders attended, and the program was kicked off by USCIS Director Alejandro Mayorkas. The morning's speakers included a small panel of successful CEO's and venture capitalists who provided their own inspiring immigration stories, as well as words of caution that America is experiencing a reverse "brain drain". These panelists, Ms. Ping Fu, Mr. Michael Moritz, Mr. Shervin Pishevar, and Mr. Vivek Wadhwa, as well as Mr. Christopher Che, were then awarded "Outstanding American By Choice" during a naturalization oath ceremony.

The anecdotal immigration problems explained by local entrepreneurs and immigration lawyers in attendance best articulated the nature of the problem. Several entrepreneurs explained that the uncertainty of knowing exactly how to proceed in order to comply and get a visa was actually a deterrent from starting businesses in the U.S. When one engineer obtains an H-1B visa, and another with the exact same credentials does not, there is no reliability. More than one immigration lawyer explained to the USCIS that venture capitalists will call up and ask exactly how to structure a new company to assure that the founder will be able to obtain a visa, and the answer is that we do not know with certainty what will work. As an illustration of how out of touch the USCIS requirements can be, several entrepreneurs explained that their start-up company had never created an "organizational chart" until one was requested by the USCIS. As this entrepreneur explained, the three of them sat across from each other in the living room and just knew what themselves and each other was supposed to be doing.

This program was the kickoff of the ninety-day program. As the top level USCIS officials appear truly open to trying to fit entrepreneurial foreign nationals into the range of current business visa options, as an immigration lawyer I am optimistic that we will see adjudications improve for foreign nationals in startups and small companies. As an American, I'm optimistic that we will see more startup companies flourish and grow the U.S. economy.