The Economic Case for "Start-Up Visas"

Immigrants, or foreign-born U.S. citizens, make up over 50% of Silicon Valley company founders. This, according to the Wall Street Journal article "Start-Up Visas Can Jump Start the Economy", is the evidence as to why Congress should pass an immigration law allowing for start-up visas. According to the article, even though foreign-born residents made up approximately 12.5% of the U.S. population, nearly 40% of technology company founders and 52% of Silicon Valley company founders are foreign-born. If U.S. immigration laws made it easier for bright, entrepreneurial foreign nationals to obtain a work visa to start a new company, then we would see more new business which would lead to more jobs for all.

Right now, immigration laws make it difficult for a foreign national to start their own business while maintaining legal immigration status. This blog has posted before about the Start-Up Visa, and evaluated the current immigration options for those entrepreneurial spirits determined to start a new company. The situation typically originates when foreign nationals come to the U.S. as students to earn a U.S. Bachelor's degree or even a U.S. Master's degree. Upon graduation, a foreign national usually needs a company to sponsor them for a work visa in order to stay and work in the U.S. As I've pointed out in a prior post, an entrepreneur's own company can sponsor them for an H-1B visa, but this route is challenging as the USCIS assumes that H-1B's are for larger companies, and not a one or two employee company. The other nonimmigrant option, the E-1 or E-2 based on a substantial investment or substantial international trade, has several limitations including it only being available for people from certain countries.

The Wall Street Journal article recommends that the requirements for a start-up visa are showing a minimum investment from legitimate sources, such as venture capital firms or angel investors. The article hypothesizes that some start-ups would fail (as start-ups often do), but the visa could continue as long as the entrepreneur continues to raise capital, create jobs, make sales, etc.

A visa that acknowledges that a company might fail while still allowing the visa to continue is a RADICAL concept for the USCIS. In my experience as an immigration lawyer, it's actually too radical. Now, more than ever, sponsoring companies must submit excessive documentation of their continued viability as a business. Newer companies must routinely submit business plans, audited financial statements, Federal tax returns, proof of paying employees, contracts or invoices showing to show business activity, and more. The USCIS requests this documentation to establish: 1) that the company is really a legitimate company conducting business, and 2) that the company is viable and will be able to employ the foreign national throughout the term of his visa.

Fortunately, the USCIS does not make laws. Congress makes the laws. Although this particular recommendation is contrary to the USCIS mindset, we should continue to put all ideas out there as to how a start-up visa could work. My recommendation as to how it could work can be found in the earlier post.

A start-up visa is much more than another visa type allowing foreign nationals to stay and work in the U.S. Providing a visa for entrepreneurs opens up an avenue for creating businesses and generating jobs to a whole new group of smart, motivated people. Not only would a start-up visa result in new companies, new jobs, a boost to the economy, etc., but it would also help the U.S. in maintaining its global stance in technological and innovative advancement. If the U.S. Congress does not create a "start-up visa", the bright entrepreneurs that graduate from U.S. universities will simply go to other countries, such as Canada, that already have this type of visa.

Immigration Reform, Work Visas / by Michelle Gee