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Businesses, Academics Urge USCIS to Improve Entrepreneur Visa Adjudication, Daily Labor Report

November 21, 2011

Reproduced with permission from Daily Labor Report, 224 DLR A-5 (Nov. 21, 2011). Copyright 2011 by The Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com

A variety of business groups and academics Nov. 17 sent a letter to the Homeland Security Department's U.S. Citizenship and Immigration Services suggesting steps the agency can take to improve immigration adjudications for entrepreneurs and start-up businesses.

"Foreign-born entrepreneurs have been responsible for driving much of the economic growth and job creation in the United States over the last three decades," and steps should be taken to encourage the world's best and brightest "to come to the United States and start a business," the groups wrote.

The letter—signed by 15 groups and individuals, including the U.S. Chamber of Commerce and the Partnership for a New American Economy—was born out of a collaboration between the signatory groups and the American Immigration Lawyers Association.

The letter was sent to USCIS Director Alejandro Mayorkas in response to two recent USCIS calls for stakeholder feedback about the role the agency can play in promoting start-up enterprises and job creation through immigration.

Letter Responds to USCIS Initiatives

On Aug. 2 USCIS announced several policy and outreach efforts designed to promote start-up enterprises, including changes to the adjudication of EB-5 immigrant investor visas and a series of public engagement opportunities for entrepreneurs to interface with the agency (148 DLR A-8, 8/2/11).

In addition, USCIS Oct. 11 launched an "Entrepreneurs in Residence" initiative to collaborate with business leaders to help the agency focus on fully realizing the job creation potential of current immigration law (197 DLR A-14, 10/12/11).

The letter was written as a way to "participate in this important process," the groups said.

The groups outline two main recommendations to improve the adjudication of immigration petitions filed by entrepreneurs and start-up businesses—developing targeted training materials for adjudicators and changing the Adjudicator's Field Manual (AFM) to guide adjudicators in assessing petitions filed by entrepreneurs.

Pelta Says Immigrant Entrepreneurs Create Jobs

Eleanor Pelta, president of the American Immigration Lawyers Association, told BNA Nov. 18 that the letter was sent to USCIS because of the "growing importance” of immigrant entrepreneurs.

"So many highly skilled, talented immigrants are able to bring jobs, wealth, and innovation to the United States," she said.

Pelta added that USCIS needs to take steps to ensure that "we don't turn one eligible entrepreneur away that could create jobs."

The agency has an "appreciation" for the importance of immigrant entrepreneurs and start-up businesses, but adjudicators must be educated in "what are new, accepted business models for emerging businesses," she added.

New Training, Field Guidance Suggested

The letter urged USCIS to consider creating a training video for adjudicators that "walks through the various stages of start-ups' development."

The video could feature interviews with start-up founders, venture capitalists, investors, and executives that can discuss the steps in a start-up's growth, the groups said.

Next, the groups suggested that USCIS make changes to the AFM to ensure that "criteria for assessment be transparent and clearly applicable to petitions filed by entrepreneurs."

As an example, the groups suggest that the AFM make it clear that job creation is a benefit to be considered in deciding a petition. In addition, the AFM could provide examples of qualifying comparable evidence that would apply to entrepreneurs, such as holding patents or securing a financial commitment from outside investors, the groups said.

"Adding clarifications to the AFM will help to promote and encourage foreign entrepreneurs to start businesses in the United States, as well as facilitate the process of adjudicating those petitions," the groups wrote.

Groups, AILA Cite Adjudication Problems

According to the letter, adjudication changes are necessary because "the restrictive trend of some USCIS adjudications over the last few years has created the perception that foreign entrepreneurs and workers at small companies are no longer welcome," in the United States.

"H-1B and L-1 petitions filed by innovative small companies are routinely issued onerous requests for inapplicable evidence, and in many cases these petitions are denied," the groups wrote.

The groups cited requests for evidence and petition denials that say petitioners lack "organizational complexity" or "organizational structure." These are "vague reasons that hint at the petitioner's smallness," as the real reason for a visa denial, the groups said.

Meanwhile, petitions filed by larger companies for the same positions are "almost always approved," and USCIS should work to level the playing field for smaller companies, the groups said.

Pelta agreed that AILA has seen requests for evidence (RFEs) and denials that reflect a "too small to succeed" attitude among adjudicators. She told BNA that some RFE templates have problematic questions related to a business being "too small" to support certain types of jobs, like a marketing director or chief financial officer.

It is important for adjudicators to "learn about what kind of business ventures are being started and what are the specialty occupations within those businesses," Pelta said.

USCIS "has to make a connection between the entrepreneurship initiative and the adjudication environment," Pelta said. "The two need to be put together so adjudicators benefit from the expertise business leaders are bringing to the table."

Continued Collaboration Expected

USCIS spokesman Bill Wright told BNA Nov. 18 that Mayorkas has received the letter, is reviewing it, and will respond accordingly.

Meanwhile, Pelta told BNA that the agency has "responded positively" to the letter so far.

She said the next steps for AILA and the groups that signed the letter are to provide USCIS with an outline for what could be included in a training video and suggest concrete changes to the AFM.