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Absent Congressional Action, Can the USCIS ‘Entrepreneurs In Residence’ Program Fix Business Immigration Better than a Floating Incubator?

USCIS Director Alejandro Mayorkas announced in October 2011 a new “Entrepreneurs in Residence” program to promote job growth by improving existing employment based immigration categories that expand opportunities for job creation. However, we haven’t heard any more about this program until today when USCIS posted a job announcement for the tactical team entrepreneurs in residence. Except for a minor attempt to deal with per country caps, and a flawed Start-Up Visa Act that has gone nowhere since its introduction in February 2011, Congress refuses to deal with legislation that would fix the legal immigration system in a way that could foster job growth. Unfortunately, only Congress can change visa numbers and categories and their primary requirements.

Statistics abound showing that immigrants are key to new company start ups and small business expansion. 40% of immigrant entrepreneurs are women, according to a new study. Still other immigrant entrepreneurs are either without status or are not fluent in English, yet earn over $200,000 a year while creating jobs for others, according to a recent New York Times article. Yet individual entrepreneurs are taking matters into their own hands in the absence of needed legislation or administrative revamping of policy and procedures.

One such entrepreneur is Max Marty of Blueseed who has come up with a business plan for an off-shore seafaring floating incubator for foreign national Silicon Valley start-up types. The company would provide office space, supplies and services on a decked-out ship for multiple new companies. Ferry service would be provided to the entrepreneurs to come to the mainland for meetings and conferences within the confines of the B-1 business visitor visa. Although this model needs some serious review by experienced immigration lawyers to make sure temporary visitors meet qualifications for visa or visa waiver status, it’s an intriguing idea since the H-1B cap is closed until next year; current policy prohibits self-employment by H-1Bs; and other visa categories for small business owners are heavily scrutinized, are denied or take too long to obtain.

Another creative attempt to deal with immigration policy was started by several professors creating a new “Freedom University” for college bound students in Alabama, home of the most restrictive immigration legislation in the country that prohibits undocumented students from attending college, even if they were willing to pay higher out of state tuition. Freedom University will open its doors to any student that wants to pursue higher education without regard to immigration status.

Back in October, Director Mayorkas and Tom Kalil, Deputy Director of Policy in the White House Office of Science and Technology held a press conference explaining the agency’s new and rather creative “Entrepreneurs in Residence” initiative, a minor component of the President Obama’s larger StartUp America program. Startup America focuses on “accelerating high growth entrepreneurship across the country” that includes start up funding, mentors and product services. Since Congress refuses to fix the legal immigration system, the Administration hopes to make changes within current statutes and regulations that promote job creation by the immigrant community. This means USCIS can fix regulations, policies and procedures so long as they remain consistent with existing legislative statutes.

Director Mayorkas stated that the “Entrepreneur in Residence” initiative is premised “on the basic principle that our agency would benefit tremendously from having expertise from both the public and private sector join us and help guide our efforts in ensuring maximum use of existing laws.” The plan is to have “”information summits’ populated by experts from the public and private sector, entrepreneurs, business leaders, academics, … and other thought leaders.” They would come to USCIS to share “the realities, dynamics, and challenges that the business world confronts when dealing with United States immigration system and the visa pathways that are currently available.” Immigration practitioners are quite familiar with the disconnect between business visa adjudications and business “realities, dynamics and challenges.”

On the one hand, “information summits” may not be effective in an entrenched bureaucracy. Getting the word from the top down to the field adjudicators has historically been challenging as any immigration lawyer knows. On the other hand, the Entrepreneurs in Residence idea is a first and creative attempt to address the issue, given the relentless Requests For Evidence and crazy decisions out of the agency over the last few years during the recession. Visa applications to start or expand businesses have been routinely rejected or delayed for reasons having nothing to do with common business sense. Agency-wide suspicion that all small business visa sponsors meet a fraud profile makes the process all the more difficult for legitimate business petitioners and visa beneficiaries.

Director Mayorkas envisions that the information summits will help the agency develop policy improvements, identify internal adjudication process challenges and address those challenges. The plan is to incorporate input from a small group of selected experts forming a “tactical team” to interact with the USCIS policy people, processing and training teams as a collaborative effort. The Administration has used a similar model for the FDA program. Training efforts would include devising metrics to know what challenges remain, and what success means in terms of spurring economic growth and helping create American jobs.

The entrepreneurial initiative would look at all employment based visa categories to “spur entrepreneurial growth, to maximize innovation, all for the benefit of our economy and the American worker.” Director Mayorkas questioned whether current policies actually fully realize the legislative intent behind visa categories that were designed in the first place to attract talent from other countries. Although most of the recent improvements have been made to the EB5 Immigrant Investor program, the new initiative is to focus across all business visa and green card categories. Examples of some recent efforts to improve the EB5 program include direct email access between applicants, petitioners and adjudication teams to address issues “on a real time basis.” Premium (expedited) processing of EB5 applications will be implemented along with telephone access to personnel to address questions and issues before their cases are resolved. We can only wait now to see who will be appointed to the tactical team and how their work will contribute to improvements in the system we currently have, with a measurable output of job growth.