The Biden Administration has taken a few policy steps in the past two years to increase opportunities for entrepreneurs, investors, and STEM graduates. USCIS has incorporated guidance encouraging applications for national interest waivers for STEM graduates and parole for international entrepreneurs. Additionally, certain persons are eligible for E-2 Investor visas, E-1 Treaty Trader visas, and L-1A intracompany transfer visas, which include start-ups. Tech layoffs have forced many to get creative. All of these immigration options present national interest benefits to the U.S.
- EB-2 National Interest Waivers. Early last year, USCIS updated its policy guidance to implement the Biden Administration’s Executive Order on Restoring Faith in Our Legal Immigration Systems and Strengthening Integration and Inclusion Efforts for New Americans. The guidance encourages persons with advanced degrees or exceptional ability – particularly in the STEM fields – to petition for permanent residence. This process sidesteps the labor market test process for green cards, which can take two years or more, even before adjustment of status. Individuals seeking a national interest waiver must show evidence of an advanced degree or exceptional ability and must also meet three factors that USCIS uses to determine whether it is in the national interest that USCIS waive the requirement of a job offer and thus the labor certification. The three factors USCIS considers for a national interest waiver are whether (1) the person’s proposed endeavor has both substantial merit and national importance; (2) the person is well positioned to advance the proposed endeavor; and (3) it would be beneficial to the United States to waive the job offer and thus the permanent labor certification requirements. Premium processing recently opened up for these applications as well, making the finish line potentially that much nearer.
- USCIS Provides Guidance on Program for International Entrepreneurs. With the recent surge in tech layoffs, USCIS has been pushing out information on a few different options to allow noncitizens to remain in the U.S. One of those programs . One of those programs is called “International Entrepenuer Parole.” Basically, USCIS will exercise its authority to authorize “parole” for certain noncitizen entrepreneurs who hold a substantial ownership interest in a start-up entity, and who can show that their presence in the U.S. will substantially benefit the start-up company’s potential for growth and job creation. The program favors substantial investment, significant government contracts, or other clear public benefit. Spouses and children may apply for contemporaneous parole and work authorization for the spouse.
- E-1 Treaty Trader and E-2 Treaty Visas. The E-1 and E-2 Treaty visas are based on bilateral treaties the United States have with certain countries. We see a lot of these types of applications from Canadian businesses, in particular. Basically, if a company is principally owned by nationals of a qualifying country, and the company is engaged in substantial trade with the U.S., or there has been a substantial investment in an at-risk U.S. enterprise, there may be an opportunity to pursue one of these visas. Eligibility under these two options is based on a number of details, and the usual way to process these applications is through the Department of State abroad, although it is possible to apply for a change of status to one of these categories from within the U.S.
- L-1A Intracompany Transfers. The L-1A is status is used by companies with operations inside and outside the U.S. to transfer qualifying executives and managers to the United States to work. The rules allow a one-year visa for establishing a new office in the United States. Basically, the organization must establish sufficient physical premises in the U.S. for the business; the individual must have worked for the organization abroad for one continuous year in the last three years; and the applicant must provide evidence that the U.S. position will support an executive or manager position within one year. The overall organization must be commonly owned and controlled. All of these terms (e.g. executive, manager, common ownership) have technical definitions. See 8 CFR 214.2(l)(3)(v) for details.
- Options for Noncitizens Terminated for Employment. Terminations by big tech have been headline news in recent months, creating very difficult circumstances for some. USCIS has provided some guidance on this situation, which may in some cases tie into some of the national interest options mentioned here.