DHS Secretary Napolitano Announces Job Creation Initiatives via Immigration

DHS Secretary Janet Napolitano and USCIS Director Alejandro Mayorkas announced this past week that they are going to look at a variety of immigration mechanisms to try to promote startup enterprises and foster job creation. The agency says that it will go further to try to attract foreign entrepreneurs and persons of exceptional ability who may be able to create jobs locally. Their announcement does not represent a change in law; to the contrary, the agency says it will just try to be more proactive in “ensuring that the potential of our immigration laws is fully realized,” as Director Mayorakas said.

Specifics were offered. Time will tell to what degree adjudicators at USCIS Service Centers recognize these initiatives, but the possibilities are interesting for prospective immigrants.

For example, there is some indication that the EB-2 category and national interest waivers may be increasingly utilized for entrepreneurs. EB-2 applicants have to demonstrate that they have advanced degrees, or are individuals of exceptional ability in the science, arts or business. EB-2 applicants typically must test the U.S. labor market to for willing, available, qualified workers. The labor market test can be waived if it is proved to be in the national interest, and the press release seems to suggest job creation might now be considered a reason for such a waiver. If so, the EB-2 petition could be a path to permanent residence for some, such as those holding E visas and other investors who’ve had difficulty previously navigating the permanent residence system, due to self-petition restrictions.

USCIS also said that it will review its policies regarding H-1B petitioners where the H-1B beneficiary is the sole owner of a petitioning company, for purposes of defining an employer-employee relationship. In the past two years, the agency has taken a very restrictive view of this circumstance, despite past favorable administrative case law, and has denied many H-1B petitions for small employers. Consequently, entrepreneurs and startups have opted to go to other countries to pursue their business, which in some cases have gone on to be successful, abroad. The agency really does need to review this policy.

The agency also announced that it will now open up premium processing for multinational executives and managers, which is a definite move forward. Premium processing allows 15 business day adjudication of a Petition for Alien Worker, for a premium price of $1225. Businesses need to be able to plan. Although the added cost is burdensome, premium processing gives executives, managers and owners some predictability in their planning. This benefit was long overdue.

Also of note, the EB-5 immigrant investor program will be enhanced by changing the intake and review process, and the agency will be holding a series of stakeholder meetings, as it tries to further find ways to create opportunities for the immigrant investors and entrepreneurs. Longsuffering immigration attorneys and advocates tend to be of a wait-and-see attitude concerning all of these changes, but on paper, the changes certainly look good.