Is the U.S. Ready to Progress Beyond the 9/11 Era With Its Business Immigration Policies?

By Jorgelina E. Araneda , J.D., LL.M.

Posted: 8th January 2015 09:00

The recently announced executive actions of President Obama of the United States makes it clear that the current Administration wishes to modernize and improve the country's immigration programs to grow the economy and create jobs.  This is important because the current status of business and employment immigrant visas is in flux. 
 
Each year the Congress grapples with the business H-1B nonimmigrant visa cap for professional and skilled workers.(1) What Congress does not seem to comprehend, even though a 2011 US Census report shows otherwise, is that there are insufficient native born Americans willing to undertake the degrees needed for the fields in science, technology, engineering and math, also known as STEM fields.  The 2009 U.S. Census showed that more foreign born people obtained professional and doctorate degrees than native born people.(2)  Since there are not enough workers who can or are authorized to work in those fields with regular or advanced degrees or knowledge, U.S. companies must look abroad or to foreign students studying in U.S. universities.  The 2015 cap or quota of 65,000 visas was met on April 7, 2014.(3)  Obviously the need is greater than what the Congress wants to permit.
 
Another area in flux is the immigrant employment visa for those in professions holding advanced degrees or exceptional ability seeking what is called a “National Interest Waiver.”   This visa is a second preference employment-based type. It is a self-sponsored visa and one that successful professionals attempt to obtain when an employer is unwilling to sponsor the worker for permanent residence through the regular channels.  A foreign worker must show that his/her skills will substantially benefit prospectively the national economy, cultural or educational interests, or welfare of the country and whose services are needed by a U.S. employer.  The problem is the waiver portion because one must show that the national interest would be adversely affected if a labor certification were required.  Labor certification requires a U.S. employer to undergo active recruitment for the position of sponsorship and proof that a qualified U.S. worker was not able to be found.  Citizenship and Immigration Services (CIS) is inconsistent in determining when the national interest would be adversely affected if a labor certification were required.
 
For entrepreneurs, there are several options with the most well-known being the “EB-5” visa category, or employment creation visa.  This is a program which grants “conditional” permanent residence, leading to regular permanent residence, for persons who invest US $1,000,000 or US $500,000 under certain circumstances.  One must start a new commercial enterprise that creates 10 full-time jobs for U.S. citizens or authorized U.S. workers, in addition to engaging in day-to-day management or policy formulation.
 
Of the actions that CIS will undertake to modernize and improve its business immigration programs, two directly affect those who are self-sponsoring with either the second preference visa via the National Interest Waiver or entrepreneurs.  The executive action will “[c]larify the standard by which a national interest waiver may be granted to foreign inventors, researchers and founders of start-up enterprises to benefit the U.S. economy.”(4)  It will also “[a]uthorize parole, on a case-by-case basis, to eligible inventors, researchers and founders of start-up enterprises who may not yet qualify for a national interest waiver, but who: [h]ave been awarded substantial U.S. investor financing; or [o]therwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting-edge research.”  Id.
 
What these changes show is a recognition that in the United States immigrants have higher business ownership and formation rates than non-immigrants. This is a fact established by the U.S. Small Business Administration in a May 2012 report.(5)  According to the organization Partnership for a New American Economy, more than 40 percent of the Fortune 500 companies were founded by immigrants (90 companies) or children of immigrants (114 companies).(6)  Also they found that in 2011, of the patents awarded to the top ten patent-producing U.S. universities, 76 percent had at least one foreign-born investor and for high-tech and cutting-edge fields, the rate of patenting among the foreign-born was 87 percent for semiconductor device manufacturing and 84 percent for information technology.
 
As an immigration lawyer practicing in the United States for more than 23 years, the statistics do not surprise me.  I have known it but did not have the actual figures.  I have worked with the high-tech companies, research companies and universities to bring in those highly-skilled professionals to live and work in the U.S.  I have seen the entrepreneurial drive and desire to excel in this country.  What I have not seen is an official acknowledgment of what the immigration law practitioners know.  Hopefully the new changes will be implemented and not blocked by politicians without an understanding of what truly drives a country and an economy.  Or if they do, their disdain of President Obama will not stop progress in this area.

(1)    The H-1B visa is a temporary nonimmigrant visa for workers in a specialty occupation, fashion model of distinguished merit and ability, or one providing services related to the U.S. Department of Defense's cooperative research and development or co-production project.
(2)    2.1 percent  of foreign born obtained professional degrees compared to 1.9 of the native born population and 1.9 percent foreign born obtained doctorates compared to 1.0 percent of the native born population.
(3)    There is an H-1B Master's exemption for the first 20,000 petitions filed for a foreign national who has obtained a U.S. master's degree or higher.
(4)    CIS Announcement of Executive Actions on Immigration at link: http://www.uscis.gov/immigrationaction.
(5)    Fairlie, Ph.D., R.W. (2012)  Immigrant Entrepreneurs and Small Business Owners, and Their Access to Financial Capital   Retrieved from https://www.sba.gov/content/immigrant-entreprenuers-and-small-business-owners-and-their-access-financial-capital/ 
(6)    Link http://Andrianampoinimerina/research/new-American-fortune-500/

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