Changes In Immigration Process To Help Foreign Entrepreneurs

Secretary of Homeland Security Janet Napolitano and U.S. Citizenship and Immigration Services (USCIS) Director Alejandro Mayorkas recently announced a new step designed to help the nation's economy and attract foreign entrepreneurial talent.

"Current immigration laws support foreign talent who will invest their capital, create new jobs for American workers, and dedicate their exceptional talent to the growth of our nation's economy," said Director Mayorkas.

To help potential investors, the USCIS has created a FAQ page with specific information for the EB-2 visa program.

EB-2 Visa

The EB-2 visa covers noncitizens with advanced degrees and individuals with special talents in business, sciences and the arts - designated as those with "exceptional abilities."

The EB-2 visa petition necessitates a Department of Labor certification and viable job offer from your future employer. If your employment would be in the "national interest" of the United States, the certification and need for the job offer may be waived.

Advanced Degree

The USCIS FAQs provide additional specific information on how to qualify for an EB-2 visa. For example, an entrepreneur may qualify as a "member of a profession holding an advanced degree if the:

  • Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur's behalf;
  • Entrepreneur is a member of the profession holding an advanced degree or foreign equivalent degree;
  • Underlying position requires, at a minimum, a professional holding an advanced degree or the equivalent;
  • Petitioning employer has received an individual labor certification from the Department of Labor; and
  • Entrepreneur meets all the specific job requirements listed on the individual labor certification."

Exceptional Ability

An entrepreneur qualifies as an individual of "exceptional ability" in the sciences, arts, or business "if the:

  • Entrepreneur will be working for a U.S. employer who files a petition on the entrepreneur's behalf;
  • Entrepreneur will be working in the sciences, arts, or business;
  • Entrepreneur has exceptional ability in the sciences, arts, or business;
  • Entrepreneur will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the United States;
  • Petitioning employer has received an individual labor certification from the Department of Labor; and
  • Entrepreneur meets all the specific job requirements listed on the individual labor certification."

Improvements to the EB-5 Immigrant Investor Program

In May of 2010, changes were made to the EB-5 immigrant investor program to improve the intake and review process.

USCIS proposed fundamental changes to make the EB-5 process more efficient, including:

  • allowing more premium processing for certain EB-5 applications and petitions;
  • increasing communication between the applicants and USCIS; and
  • allowing applicants the chance to meet with a USCIS panel to address any "outstanding issues" in an application.

Even with the improvements to the process, much of immigration law can be described by a quote from Winston Churchill, "It is a riddle wrapped in a mystery inside an enigma." It is also confoundingly complex, due to the ever-changing political and economic climate.

The key to this riddle is to work with an experienced immigration attorney, who can provide appropriate advice and counsel for your immigration matters.