On August 2, 2011, Department of Homeland Security Secretary Janet Napolitano announced that her agency was paving the way for entrepreneurs to come to the United States to "spur job creation".
The initiative primarily consists of clarifications of agency policy,
including guidance that an entrepreneur: (1) can be sponsored for H-1B
temporary work status by her own company if a board of directors has the
ability to "hire, fire, pay, supervise or otherwise control" her work;
(2) can qualify for the EB2 immigrant category if she has an advanced
degree or has shown exceptional ability and has an approved labor
certification; and (3) can qualify for a "national interest waiver" of
the labor certification requirement in certain situations.
Additionally, the agency has committed to faster processing (for a fee)
for EB5 investor petitions in regional centers and EB1 multinational
executives and managers.
Other enhancements to the EB5 program were announced in May and are being implemented.
We laud this initiative, but cautiously. Its success will depend on
U.S. Citizenship & Immigration Service implementation. If USCIS
examiners take a real-world view of concepts like employer/employee
"control" and "exceptional ability" it will be a welcome relief from
recent tightening of such interpretations to the point of strangulation.
Applications for categories that require similar discretionary
determinations have been greeted with skepticism that verges on
paranoia. Written testimony by experts with nothing to gain from the
application is routinely ignored. The applicable legal standard of
proof, "preponderance of the evidence" (i.e., more likely than not), in
practicality has become "beyond a shadow of a doubt". The plain language
of regulations is rejected in favor of tortured interpretations aimed
at preventing alleged abuse by a few applicants.
Unless entrepreneurs are treated very differently than academic
researchers, international executives and other highly-skilled
professionals, these administrative clarifications will not create any
Another complication is that DHS does not control the Department of
Labor. Obtaining a labor certification from DOL is impossible if the
job is not open to U.S. workers. An entrepreneur is typically essential
to the functioning of her company. Applicants must disclose their
ownership interests when filing the labor certification. If DOL believes
that the entrepreneur would not be replaced with a U.S. worker found to
be qualified in the required labor market test, the labor certification
will be denied.
Although the new guidance suggests that waiving the labor certification
requirement will be easier if jobs will be created, to take advantage of
this route, the entrepreneur must have either an advanced degree or
prove "exceptional ability", which to date has been problematic because
of strict agency interpretation mentioned above.
We hope this initiative signals a new era of real-world evaluation of
reasonable evidence, and that the Department of Labor follows Homeland
Security's lead to further encourage entrepreneurship. If so, this
initiative could open up exciting possibilities for U.S. start-up