Today, USCIS held an engagement session about developments in its Entrepreneurs in Residence initiative (EIR). Director Alejandro Mayorkas, his senior counsel and others on his staff attended. The EIR initiative is an attempt by USCIS to have adjudicators better understand the entrepreneurial space.
Key developments thus far include the following:
1. The EIR Tactical Team has trained small groups at the various USCIS adjudications service centers.
2. Specialized teams are assigned to entrepreneur cases.
3. The EIR will be launching its Entrepreneur Pathways website this week. Focus is on getting to people before they come to the US so they have time to plan their strategy.
4. With the training, USCIS has developed new nonimmigrant adjudications templates and they are working on similar ones for permanent residence categories.
5. USCIS wants to train certain adjudicators about various industries and the types of specialized knowledge for the industry for L-1B Intra-company transferee cases.
6. To reach entrepreneurs, USCIS wants them to email the public engagement division through the www.uscis.gov website.
The engagement session included a question and answer period. Example questions included:
1. Ability to pay – USCIS is too narrow on the issue. USCIS said they are considering their approach to this issue. They are interested in looking at payment streams for entrepreneurs – how do they work now?
2. Difficulty with F-1 Optional Practical Training to H-1B. H’s require payment of wages. Entrepreneurs need CEO titles to raise money and are often paid in equity. USCIS is looking at that issue.
3. O-1 Extraordinary Ability Aliens using the “other comparable evidence” criterion: How can company owners deal with this in stealth mode? USCIS says their website is geared to entrepreneurs who are not in the US yet. Counsel should explain the stage of growth for the company and the entrepreneur at the time of filing. Avoid industry jargon. USCIS is trying to bridge the information gap between USCIS and the entrepreneur. The California Service Center staff has been making visits to incubators and accelerators.
4. Serial entrepreneurs are known to fail at times, so it is hard to show that a person is great enough for O-1 visas. Would letters from Venture Capitalists help with the “other comparable evidence” criterion? USCIS said they are open and understand the value. Failing was covered in the training. There is an expert network within USCIS. Adjudicators have been trained regarding pathways of funding, what failure looks like and how it helps the entrepreneur. When responding to RFEs, explain the entrepreneur’s pathway under the existing law. USCIS is trying to learn more about this.
5. Post Kazarian, the EB-1-1 Extraordinary Ability Alien green card category and the O-1 nonimmigrant Extraordinary Ability alien categories are evaluated based on a “final merits” determination by looking at past accomplishments as predictors of future ability/reputation. The focus is not on what can be done by the beneficiary in the future. Would USCIS consider changing this approach? USCIS said this was under consideration.
6. Focus on small company criterion as indicators of fraud is extremely frustrating to small companies and start ups. Can this be changed and how? USCIS said they are working on this issue as well.
7. In the real world, stock options are common as compensation schemes for start up entrepreneurs and their initial staff. Would USCIS, working with DOL, consider stock options as viable compensation schemes both for temporary visas and labor certification? USCIS said this was being considered, supposedly in consultation with DOL.
8. Would USCIS be willing to share their training materials? For example, why the focus on square footage requirements in RFEs? Many start ups start with virtual offices. USCIS said it is not likely to share the training materials but is looking at getting away from formulaic approaches and may share the training syllabus.
9. Will the EIR initiative be integrated into the EB5 entrepreneur investor process? USCIS is not presently looking at doing that but is developing more in-house expertise in the EB-5 unit.
10. The EIR effort doesn’t match the increasing number of RFEs. Responding to RFEs costs businesses more money and delays processing times. Focus seems to be on USCIS looking at fraud indicators. USCIS said they want to hear more about this.
11. Other comments from USCIS:
a. USCIS is looking at revising the infamous employer-employee requirement in the “Neufeld Memo,” especially the control issue, which Director Mayorkas sees as a “major policy issue.”
b. Applicants or their counsel should note on forms that they are entrepreneurs. Tell their story in the application such as they would when seeking funding. Director Mayorkas said that this does not imply that entrepreneurs will get special treatment but that their cases will be directed to specially trained adjudicators.
c. USCIS relies heavily on VIBE to verify employer information (also the reason for many RFEs where VIBE information does not match petitioner provided information). USCIS is reviewing how VIBE is being used.
d. Whether F-1 foreign students can use OPT to be a founder, USCIS has deferred to ICE, and ICE said yes, that is possible. Expect further clarity soon.