International Entrepreneurs Welcome

Recently, the DHS proposed a new rule to allow foreign entrepreneurs to come to the United States to invest in, and build start-up businesses. If approved, qualifying entrepreneurs will be admitted on a case-by-case basis for an initial two-year period, extendable up to five years.

This is not a typical proposal for the DHS. Traditionally, business immigration laws and regulations allow for the long-term stay of foreign workers (more than 90 days in the Visa Business Waiver Program, and 6 months on a B-1 visa without work authorization) if those individuals can prove a decent history of being extraordinary and at the top of their fields. Statements about the applicant’s potential (ex. outstanding for his/her age, a capacity for greatness) tend to hurt the individual’s claims of achievement.

While it’s true that under the new proposal, foreign entrepreneurs will still need to present an successful history of start-ups (an “active and central role”, and significant ownership state in an American company founded in the last three years), and have some sizable backing capital ($345,000 private investment, $100,000 government grant, or some combination of the two), the promising change in direction here for the DHS means that the potential of an enterprise, and not just its previously established worth would be recognized as being beneficial to the U.S. economy. The policy, which does not need congressional approval, would acknowledge the inevitable risk in growth, and operate on the understanding that while most start-ups fail, the few that succeed can tremendously improve the U.S. way of life.

Currently, the closest thing to a visa for foreign entrepreneurs is the E-2, which is restricted to nationals from treaty countries, and consequently rules out some of the world’s most prominent technological innovators from places such as India, China, and Vietnam. The other option is for multinational businesses to transfer managers to their U.S. counter-parts on an L-1A visa, but this course of action has typically been harshly adjudicated by the USCIS when the U.S. organization is presented as a new enterprise. The new proposed policy, however, would reflect a new direction based on an old idea – that America really is the land of opportunity for all.

AILA Summary of the document can be read here.

The full version can be read here.