USCIS Q & A w/AILA from 9 OCT 2012 re: H-1B Processing Delays and Entrepreneur Visa Options

On October 9, 2012 the USCIS (United States Citizenship and Immigration Service) hosted an engagement with AILA (American Immigration Lawyers Association) representatives. USCIS discussed its current thoughts on issues related to H-1B processing delays and challenged faced by entrepreneurs.

H-1B Delays:

If your H-1B extension petition has been pending for longer than usual, the reason might be US CIS is prioritizing other cases over yours.  Emphasis has been placed Cap-Subject H-1B petitions, including Cap-Gap and Consular Notification cases.  These are generally people who are facing a gap in employment authorization, or waiting outside of the U.S.

If you have the need to expedite a decision in your case, perhaps due to holiday travel plans, you might consider using USCIS premium processing service, which requires an additional $1225 government filing fee, for an answer within 15 days.

Entrepreneurs:

The following question was raised by AILA:

How has the Entrepreneurs in Residence (EIR) program informed USCIS thinking in processing petitions filed by entrepreneurs?

The USCIS response was the EIR initiative has provided USCIS with a greater understanding about the startup landscape which should result in more efficient and effective processing of petitions filed by startup and small companies.

Specifically, the EIR team explored additional forms of evidence that the agency has not traditionally asked for, and that entrepreneurs may be able to provide, to help determine eligibility for certain nonimmigrant classifications. The EIR team also developed and deployed a training workshop for USCIS employment based immigration officers at the Vermont and California Service Centers that focused on entrepreneurs and the environment for startup companies and early-stage innovations.  Smaller group of officers at both the VSC and CSC, who have been designated to review all start up and entrepreneur petitions, received additional documents-specific training and participated in case study workshops with the EIR team.

In addition to internal education, the EIR team is developing a new web portal that aims to close the information gap between USCIS and the entrepreneurial community. This resource aims to provide foreign entrepreneurs with a high-level overview of the nonimmigrant visa process, summary of key requirements for nonimmigrant visa categories, and filing tips to help them better understand the evidentiary requirements of nonimmigrant visa categories.  Please see a USCIS video introducing the EIR team here.

Entrepreneurs Seeking H-1Bs:

In the context of  H-1B petitions filed by  entrepreneurs, the interpretation of the employer employee relationship advanced by USCIS in the Donald Neufeld Memo from January 2010 is critical.

AILA explained how it in impedes opportunities for entrepreneurs and small and startup businesses, noting the requirements to establish the existence of an employer – employee relationship set out in the memo are felt particularly by entrepreneurs seeking to have corporations that they established petition on their behalf.

The question was, what steps has USCIS taken to ensure that the adjudication of petitions for company owners are in line with the goals of the entrepreneurs in residence program and historical legal precedent on whether a corporation can petition for a shareholder?

The USCIS response was that the EIR team has evaluated the challenges and limitations based by entrepreneurs in filing for and obtaining H-1B visas enabling them to work for their own or other startup companies. USCIS confirmed they continue to review these issues as they relate to current guidance on the employer employee relationship.

From a practical perspective on what is required for a startup to sponsor an H-1B, please see my answer on quora here:

http://www.quora.com/What-are-the-minimum-requirements-for-a-startup-to-be-eligible-to-sponsor-H1B-visa.

As I have stated before, I understand the immigration challenges faced by entrepreneurs, largely stemming from a gap in U.S. immigration law.  There is no startup visa currently.  But I also believe the system generally employs good people, who will review a request on its merits.  So if you are an entrepreneur with a viable business, the door is not shut.  But you must carefully provide USCIS what they are looking for, to the greatest extent possible.

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