Archive for 2012

DHS Entrepreneur Pathways Website and Other EIR Initiatives: Only As Good as the Visas and Adjudicators Permit

December 21st, 2012 — 4:04pm

As part of its initiative, Entrepreneurs in Residence (EIR), USCIS recently launched a new website called Entrepreneur Pathways, designed to help business people understand what immigration options are open to them and to help navigate through detailed overviews of what they need to apply for appropriate visas. Nonimmigrant visa categories outlined include B-1, H-1B, L, E, and O. See

Launched earlier this year, EIR hopes to help stimulate more foreign start-ups and, in turn, boost the struggling U.S. economy.  Its stated goals are to draw upon industry expertise to strengthen USCIS policies and practices critical to American economic growth.  By working with start-up business experts, USCIS officials seek to streamline pathways for a range of existing nonimmigrant visa categories often used by entrepreneurs.

According to USCIS, its EIR team is now developing and deploying training workshops for adjudicators that focus on start-up businesses and the environment for early-stage innovations; is training a team of specialized immigration officers to handle entrepreneur and start-up cases; and is modifying its current documentation checklists (RFE templates) for certain nonimmigrant visa categories and thus incorporating new types of relevant evidence into the adjudicative process.  These changes are designed to ensure that USCIS stays current with real world business practices. (A new study released in the fall reported that immigrant-founded companies nationwide slipped for the first time in decades, and that the United States’ unwelcoming immigration system has created a “reverse brain drain.”)

While USCIS’s efforts are commendable, and especially so if adjudication criteria are truly overhauled, serious changes to the immigration laws still must be enacted if the U.S. is serious about attracting foreign entrepreneurs, investors, and related talent.  Here are some problems that must be addressed.

First, there is no specific visa category – nonimmigrant or immigrant – for foreign nationals who seek to create start-ups. Period. While executives and managers who work for large companies abroad can transfer to a company in the U.S. on an L-1 visa and then obtain a green card, not so for entrepreneurs. Talented chefs of distinction can come to the U.S. to work for a restaurant on O-1 visas; professors and researchers can work here on professional H-1B visas and then obtain their green cards; and even performers can come to the U.S. to perform on special P visas. Even perhaps the most relevant nonimmigrant visa for entrepreneurs – E treaty trader or investor visas – is only available to those who are from specific countries.

Second, those existing visa categories that could be used for entrepreneurs often are not viable, because adjudicators apply regulatory standards and agency interpretations so narrowly that few individual entrepreneurs can qualify. For example, an entrepreneur who seeks to open a new U.S. branch office of her foreign-based company in order to obtain an L-1 visa must spend funds on renting an actual office for a year and buying elaborate equipment that normally is unnecessary to effectively start and operate her business. Obtaining green cards for entrepreneurs is even more complex and difficult. For example, criteria for the national interest waiver (NIW) green card category, a category that could be used for entrepreneurs, are interpreted narrowly.  Moreover, they require a direct connection between the business and very precise, articulated U.S. national interests as well as the individual’s proven track record of influencing his industry. The latter standards are neither in the law nor in regulations. Even just an expansion of USCIS’s 15-day premium processing adjudication program to NIW cases would go a long way towards providing predictability and thus attracting potential entrepreneurs who seek to attempt an NIW filing.

In a recent White House blog about the EIR initiative, the White House states that President Obama supports congressional action to create a “start-up visa” designed specifically for immigrant entrepreneurs, as part of his vision for a “21st Century immigration system”.  That same blog 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, and Entrepreneur Pathways is an important and concrete next step to facilitating that. . . .[I]magine that an entrepreneur from another country participates in a startup mentorship program in the United States, raises a first round of funding from investors, and wants to stay here to grow the company and hire more people.”

Sounds great, but we ask, how?

Comment » | Immigration reform

What President Obama’s 71% of the Latino Vote Means for Immigration: Immediate Prospects for Comprehensive Immigration Reform?

December 21st, 2012 — 4:02pm

Almost immediately after President Obama’s re-election on November 6, 2012, the issue of immigration and the Latino vote dominated the news, and the prospect of comprehensive immigration reform rekindled.

National Journal Editorial Director Ron Brownstein recently described the election results and the politics of immigration this way:

“President Obama’s reelection doesn’t guarantee a breakthrough in the long stalemate over immigration reform. But it did instantly invert the debate.  Since the collapse of a bipartisan immigration-reform effort in 2007, Democrats have divided over the issue while Republicans have remained in lockstep, particularly in opposition to any plan that included a pathway to citizenship for the estimated 11 million people in the U.S. illegally. Now it’s the reverse.”

He added:  “Democrats are talking confidently about forcing the issue in 2013, while Republicans are fracturing. For the first time since George W. Bush’s presidency, a genuine debate over immigration is emerging within the GOP, with advocates of comprehensive reform regaining their voices. . . .”

While some who dominate the GOP still say the party should oppose any proposal that includes legalizing undocumented immigrants and that reform efforts should start by taking only very small steps, now other voices in the GOP are arguing for comprehensive change.

It is against this election backdrop that in early December a national coalition of leaders from across the political spectrum and representing dozens of religious, law enforcement, and business leaders (including the likes of AOL founder Steve Case) gathered in Washington to tell the Administration and Congress that there is a new consensus on immigrants and America. Their message is: common sense immigration reform must be a priority for 2013, our broken immigration system must be fixed, and a pathway to citizenship for the 11 million foreign nationals who contribute to our communities and our economy must be included in the debate. The gathering, “Forging a New Consensus on Immigrants and America,” was organized by the pro-immigration National Immigration Forum.

Members of Congress are heeding the call. A bipartisan group of eight leading members of the Senate, four Democrats and four Republicans, have been meeting in recent weeks to discuss common ground on immigration. The working group members are Senators Charles Schumer (D-NY), Richard Durbin (D-IL), Robert Menendez (D-NJ), Michael Bennet (D-CO), Lindsay Graham (R-SC), Mike Lee (R-UT), John McCain (R-AZ), and Jeff Flake (R-AZ). (Flake is moving to the Senate from the House of Representatives.)

At least one religious coalition is urging the introduction of comprehensive immigration legislation within 92 days of the start of Obama’s second term, choosing that number because a biblical word for immigrants, or “strangers,” appears 92 times in the Old Testament and 92 symbolizes the importance of protecting the stranger.

According to insiders, however, a framework for immigration reform is expected in January. The framework is expected to include a pathway to citizenship for undocumented foreign nationals and additional work enforcement provisions, as well as a whole host of other provisions, ranging from increasing nonimmigrant and immigrant visa numbers to eliminating the “three- and ten-year” bars. A bill is expected to be introduced in the Democrat-led Senate in the spring of 2013, followed by hearings. Legislation that is introduced in the Senate will need at least a handful of Republican votes to advance to the House, which could happen in the fall.

Some conservatives who favor comprehensive immigration reform argue that a Republican partnership with President Obama means politically that they can claim a share of the authorship just as the Republican Congress did when it joined with President Clinton to restructure welfare. Conversely, they say, letting the Democrats and President Obama complete reform without real Republican support helps the Democrats further label the GOP as the anti-immigrant party to its longer-term detriment.

While supporting a pathway to citizenship will not guarantee Hispanic votes for Republicans next election, many believe that if the Republicans block comprehensive reform, they risk alienating Hispanics further. And, by embracing reform they can take immigration off the table and engage Latinos – and Asians too – on other issues.  In any event, the 2012 presidential election results have forced the GOP to question their message to newer Americans, many of whom heard Mitt Romney’s call for “self-deportation” as extremely offensive and synonymous with a call for them to start packing their bags.

Immigration reform alone probably will not be sufficient to significantly improve the GOP’s standing with Hispanics. But, it is an important and necessary first step.  More importantly, it is good for America.

Stay tuned. . . .

Comment » | Immigration reform

The Real Immigration Problem in the U.S.

December 9th, 2012 — 1:07pm

Photo by: takomabibelot |

The United States is letting one of its most valuable resources slip through its borders: highly skilled immigrants. And rather than fighting to hold on to the people who could help turn the economy around, the current trend in immigration policy is rather misguided.

While undocumented immigration has long been a contentious issue in the United States, not enough attention is paid to business immigration. And business immigration could be the key to turning the U.S. economy around.

In recent years, more and more Indian and Chinese students have been coming to the U.S. to pursue higher education. But rather than staying to join the workforce in the U.S., they are then returning home to seek employment. And, following suit, the number of high-tech startups started by immigrants to Silicon Valley from those countries has dropped by 8% over the past seven years. That represents a significant loss of capital and opportunity that is only compounded by the fact that these skilled individuals are taking their ideas overseas.

And the ingenuity that immigrants bring to the nation is undeniable. A study by researcher Vivek Wadhwa, author of The Immigrant Exodus: Why America Is Losing the Global Race to Capture Entrepreneurial Talent, found that 25% of U.S. all patent applications filed in 2006 listed foreign nationals living in the U.S. as inventors or co-inventors. In addition, a quarter of American science and technology companies founded between 1995 and 2005, which employed 450,000 employees, had a foreign-born lead technologist or chief economist.

Another study, Then and Now: America’s New Entrepreneurs, Part VII, co-authored by Vivek Wadhwa, Francis Daniel Siciliano II, and AnnaLee Saxinean concludes that the period of unprecedented expansion of immigrant-led entrepreneurship that characterized the 1980s and 1990s has come to a close. Today, the growth rate of immigrant-founded companies nationwide, at 24.3 percent, has plateaued. In the high-tech hub of Silicon Valley, the proportion of immigrant-founded companies has dropped from 52.4 percent during 1995-2005 to 43.9 percent during 2006-2012.

Immigrant founders of engineering and technology companies have employed roughly 560,000 workers and generated an estimated $63 billion dollars in sales during this time. While the rate of growth of immigrant entrepreneurship has stagnated, these numbers nonetheless underscore the continuing importance of high-skilled immigrants to the maintenance and expansion of the national economy. These findings are interestingly complex, since the two major skilled-immigrant groups — Indian and Chinese — are starting companies at higher rates than they did previously. Historically and today, the United States continues to benefit directly from the contributions of such immigrants. Far from expendable, high-skilled immigrants will remain a critical asset for maintaining U.S. competitiveness in the global economy.

A copy of this paper can be downloaded at


What is the Solution?

An article by Charles Kenny in Bloomberg Businessweek has a few creative suggestions. First, he proposes the U.S. remove its current caps on H-1B visas. These 85,000 visas, which are released on a first-come, first-served basis at the beginning of April every year, allow American companies to employ foreign workers in specialty occupations, including fields such as engineering and mathematics, without granting them the status of a legal immigrant.

He also finds fault in the EB-5 program, which was instituted in 1990 and gives visas to those who invest at least $500,000 and create 10 jobs. The specifics of the program led to only 3,127 people (just under 23% of all applicants) being approved in the first 10 years of its implementation.

As far as new legislation on immigration goes, Kenny is in support of passing the DREAM Act and the Schumer-Lee Bill, which would grant residency to anyone spending over $500,000 on a house, as well as giving green cards to graduate students in U.S. universities.

All in all, the U.S. needs to do something to fix its current problem with immigration. And the solution is not to keep all immigrants out—it is to strategically let them in. For more information on business immigration law, consult Zulkie Partners LLC.

Comment » | H-1B, Immigration reform

The Papers Please Policy in Arizona

November 9th, 2012 — 6:17pm

photo by: Nevele Otseog |

With the recent allowance of police offers to enforce the papers please policy in the Arizona anti-illegal immigration law, the Support Our Law Enforcement and Safe Neighborhoods Act (SB 1070), any person who is stopped, detained, or arrested for any reason is subject to have their immigration status checked if the officer has a reasonable suspicion that the person is in the United States illegally. The consequences of this policy reach far beyond a simple inconvenience for Arizona residents—it is also significantly damaging the state’s economy.
Arizona’s Unfavorable History of Harsh Immigration Policies

Since 2007, Arizona has been implementing strict laws meant to rid the state of illegal immigrants. The Legal Arizona Workers Act (LAWA) utilizes an electronic employment verification system called E-Verify that costs $147 and additional human resources to verify a single employee. The threat of losing everything for knowingly or unknowingly hiring illegal workers lead entrepreneurs to start their businesses elsewhere and earned the system the nickname of “the business death penalty.” The business formation rate then declined 14.3% in the third quarter of 2007 as unemployment rose. Workers found to be illegal were fired from their jobs, but legal Americans did not seem to step up to fill them. Not surprisingly, as crop production employment in Arizona fell by 15.6% in the four years following the enactment of LAWA, employment in the same category increased in nearby New Mexico and California.

Bad Signs for the Economy

In addition to the poor employment figures, another indication that Arizona’s laws have hurt their economy can be seen in Phoenix’s home price index. While the index for the 20 largest metropolitan areas declined by 32.9% in light of the housing bust, Phoenix’s price index dropped by a staggering 51.29%.

SB 1070 then took Arizona’s severe anti-immigration policies out of businesses and into the streets, and Forbes estimates that a total of around 200,000 people have been forced out of Arizona as a result of the two laws. Those are 200,000 lost consumers who would have continued to inject money into the economy.

Business Immigration Would Help

As evidenced by the detrimental effects that Arizona’s anti-immigration laws have had on their economy, the solution to the United States’ immigration problems is not to unabashedly evict illegal immigrants, especially those who are working and helping our economy. America was built on immigration, and it would not behoove the nation to turn its back on industrious workers now.

Zulkie Partners LLC specializes in all aspects business immigration law, including permanent resident sponsorship, nonimmigrant working visas, and retention of permanent residence status for employees facing a foreign business assignment. For more information, education, and help regarding immigration law, contact Zulkie Partners LLC, one of America’s top business immigration law firms.

Comment » | Immigration reform

CBP Plans to Discontinue I-94s, No Longer Stamping I-20/DS-2019 Documents

October 19th, 2012 — 5:45pm

U.S. Customs and Border Protection (CBP) is in the process of automating traveler arrival/departure records and will be eliminating at international airports and seaports the paper version of Form I-94, the white card placed in most foreign nationals’ passports that denotes the date of their admission as well as their status and authorized period of stay.  Instead, the traveler will receive a stamp in their passport with a handwritten code of admission (such as H-1B or O-1) and period of admission. Under the plan, nonimmigrants arriving at land borders, and certain classes of arriving foreign travelers, such as refugees, will continue to be issued a paper Form I-94.

The reasons for eliminating the I-94 paper form are two-fold: (1) CBP already has access to the information gathered on the I-94 through the foreign national’s application for a nonimmigrant visa and the Web-based Advance Passenger Information System (APIS); and (2) eliminating Form I-94 will save the agency money and resources.

Since first announcing its plans to implement a paperless I-94, CBP has received concerns from federal and state agencies about the impact on their programs that use the document for an identifier. For example, what will state DMVs require? And, what will the Social Security Administration require for SSNs? CBP also has not yet fine-tuned an online systems query capability that must be in place before the paper record is eliminated.  While implementation of the paperless I-94 is still some months away, it is clearly on the horizon.

Meanwhile, CBP has already implemented another change for certain arriving nonimmigrant visa holders. CBP officials are no longer stamping prospective or returning foreign students’ Form I-20s and exchange visitors’ DS-2019s at ports of entry. Instead, CBP is using an electronic system to adjudicate the individual’s status notation. The stamping of the Form I-20 / DS-2019 had been a longstanding USCIS procedure, and thus USCIS is apparently reaching out to other agencies to inform them of the change, since many agencies require these stamps prior to granting benefits.


Comment » | Customs and Border Protection

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