By Robert S. Whitehill and Catherine V. Wadhwani
On November 29th, the “Entrepreneur Pathways” page went live on the USCIS website. This is a resource for immigrant entrepreneurs to help them navigate the limited opportunities available to them to start a business and remain in the US legally. The White House blog posted the announcement, saying: “Immigrant entrepreneurs have always made extraordinary contributions to our Nation’s economic growth and competitiveness, creating jobs and new businesses all across the country. Immigrants started 25% of the highest-growth companies…which employ 220,000 people across the United States…President Obama is committed to attracting the world’s best and brightest entrepreneurs to start the next great companies here in the United States…”
Entrepreneur Pathways’ home page is a glossy, 5-page introduction to the immigration process that starts with a photo of the Golden Gate Bridge and ends with a photo of the Statute of Liberty. The site provides access to a great deal of simplified information about the immigration process. If only the process were as simple and straight-forward as portrayed. Nonetheless, it is a resource that reflects a goal of the President.
Perhaps unrelated, but, on November 9th, USCIS had released documents sought in a FOIA action brought to secure release of records concerning USCIS fraud investigations in the H-1B program (AILA v USCIS No 10-01224 (D.D.C. filed July 20, 2010). Reporting on the contents of the documents, a press release by the Legal Action Center of American Immigration Council summarizes USCIS’s policy as reflected in documents from the period 2008-2010: “These documents provide valuable insight into the criteria that USCIS applies to assess fraud. Notably, H-1B petitioners with a gross income of less than $10 million, with 25 or fewer employees, or that were established within the last 10 years are presumed to be more susceptible to fraud. Where these factors exist, USCIS directs adjudicators to review ‘with an awareness of the heightened possibility for fraud by and/or technical violations’ and refer them for ‘further scrutiny’.”
The most frequently used non-immigrant visa for entrepreneurs starting “the next great companies here” is the H-1B. Startups are less than 10 years old and usually have fewer than 25 employees and less than $10 million in gross income. Attracting and keeping the world’s best and brightest entrepreneurs to start their companies in the US is made much more difficult if USCIS sees potential fraud in every start up. While it goes without question that fraudulent petitions should be denied, presumably, only a small minority of filings fit within that category. Hopefully, the White House announcement and its stated interest in encouraging foreign entrepreneurs to start their businesses here will trickle down, if it hasn’t already, so that meritorious petitions filed by the next generation of entrepreneurs can be timely approved in furtherance of job creation.