Visa Lawyer Blog
On February 22, 2012, USCIS held an Information Summit on its recently instituted Entrepreneurs in Residence (EIR) initiative. This past week, USCIS released an Executive Summary on the Information Summit. Several principle themes were addressed at the summit, which the EIR Tactical team will work on addressing in the months to come.
Demonstrating the Legitimacy of Startups through Investments
USCIS acknowledged that many of the unique characteristics of startups and small businesses are also traditional indicators of fraud or ineligibility and asked stakeholders for input on what evidentiary criteria could help USCIS evaluate the legitimacy of startups. Several stakeholders commented that researching the investors of a startup venture can provide reliable information on the startup’s legitimacy. An investor will not invest if he or she doubts the founders and their organization. One stakeholder suggested creating a database of accredited investors to provide reliable information to USCIS. Other stakeholders recognized that it is easy to conduct a background check on domestic investors, but that it can be very difficult to conduct checks on foreign entrepreneurs who provide their own equity. When discussing the
subject of investors, stakeholders asked USCIS to provide further guidance as to how much equity the entrepreneur can own in the enterprise.
Understanding the Organizational Structure of a Startup
USCIS acknowledged that it is less familiar with the organizational structure of a startup than traditional large businesses. Several participants offered several common features of a startup enterprise, and suggested that USCIS could benefit from visiting the work locations of startups and other small business ventures. Several participants noted that a lack of office space had raised concern in their adjudications process. These participants explained that many startups are run out of more informal spaces such as a coffee shop or a living room, and that a lack of office space should not raise immediate concerns of illegitimacy. One participant explained that a startup company should be easily located on an internet search engine, and that internet searches were a reliable way to prove a small business venture’s legitimacy. Another participant explained that the roles and titles in a startup are more fluid. A startup can often lack the features of a big business such as a CEO and a board of directors, and one stakeholder explained that these features are often not established until funding is obtained. Participants emphasized that partnerships with big companies are easier to document than organizational structure. One participant reflected that most early stage companies do not create an organizational chart until USCIS asks for one. Another participant asked USCIS to provide information on how to structure small businesses and startups, and that venture capitalists and entrepreneurs will try and work within these standards.
Defining Specialty Occupations
The topic of specialty occupations was raised in multiple discussion groups. Several stakeholders discussed the USCIS officers’ overreliance on the Occupational Outlook Handbook (OOH). One participant believed that there should be more flexibility, theoretical knowledge, and practical application when adjudicating specialty occupations. A second participant believed that the OOH guidelines do not sufficiently track current trends in today’s occupations and positions. Several stakeholders provided feedback on the H-1B category. One stakeholder explained that he totally discounts the H-1B visa category as a means to bring in potential entrepreneurs, while another stakeholder claimed that H-1Bs work for their purposes 70-80% of the time. Finally, one participant asked if the EIR Tactical Team could identify better sources for evaluating specialty occupations, given that the OOH is not in touch with the modern economy.
Training and Culture
Several stakeholders commented that streamlining the immigration pathway for foreign entrepreneurs requires new training practices for USCIS officers. One participant suggested that success for the EIR Tactical Team requires closing the knowledge gap between USCIS and immigrant entrepreneurs. Another participant said that USCIS should provide more opportunities for officers to meet the people they are working with, and several participants felt that USCIS needs a cultural change. One participant felt that USCIS tended to look at smaller and newer operations with more suspicion, and with a more limited understanding as to how these new business practices would qualify the beneficiaries for the benefits under existing laws and regulations. One stakeholder explained that USCIS should look at the size of the business in light of the age and type of company, and that the smallest companies should be evaluated by the most experienced adjudicators. Another participant felt that USCIS should create specialized teams of officers as a good solution to evaluating startups. Several participants felt that it would be helpful to have more USCIS contact with entrepreneurs to humanize the process. One stakeholder suggested that officers should host a panel where they can discuss their cases and share promising practices with immigrant entrepreneurs. Several participants expressed the belief that education for both communities must occur
simultaneously.
Requests for Evidence (RFEs)
Several participants raised concerns about RFEs in the immigration process. One participant suggested that USCIS should create a more updated framework to continue dialogue with the entrepreneurial community. Another participant believes that direct access would be more useful than a long RFE, especially when only one piece of evidence is missing. Similarly, one stakeholder asked if RFEs could be sent via an electronic platform. Several participants said they would prefer to talk to officers directly, and that there is a feeling of trying to guess exactly what the officer is interpreting. Other participants discussed having no idea what is happening during the immigration process, and that USCIS should release more information on the process flow. One participant discussed an old Department of Labor (DOL) feature where DOL had state agencies where you could pick up the phone and quickly clarify a situation. Several participants felt that being able to resolve things more directly would reduce suspicion and the perceived adversarial attitude between immigrant entrepreneurs and USCIS officers. Several participants said they would prefer to communicate in real time.
USCIS aims to have the Tactical Team in place to begin their work this past March to more fully merge the strategic thinking gathered at the EIR Information Summit with specific proposals and looks forward to updating stakeholders with the results of those efforts. Stakeholders interested in sharing additional feedback and concrete suggestions with the Tactical Team can email us at public.engagement@dhs.gov with the subject line “Entrepreneurs in Residence.”