On August 2nd, 2011 Secretary Napolitano and USCIS Director Mayorkas made a dramatic announcement that entrepreneurs and investors could take advantage of the existing immigration system to obtain a visa and/or green card. One aspect of this memo indicated that adjudicators would view “self-petitions” by entrepreneurs for an H-1b visa more favorably.
The classic scenario is when an entrepreneur wants to start a business and sponsor him/herself for an H-1B visa. Technically it is the corporate entity, not the individual that is requesting an H-1B visa for the entrepreneur. Of course to qualify, the petitioner must show that the position requires at least a Bachelor’s Degree in the specialized field and that the beneficiary has such a degree or equivalent.
The case law is mixed on this scenario. Some cases have ruled that the separate corporate entity may indeed petition for the beneficiary, others have not turned out so favorably. For those that get denied, it appears that garnering media attention may be the best solution.
For example, an Israeli Citizen with an MBA from Stanford started Cruisewise and received over $1.65 million in venture capital funding. The company filed an H-1B visa on his behalf that was denied. However, after ABC news broadcast the story USCIS decided to reverse the denial.
Cases indicate that USCIS will frequently cite one or both of two different reasons for refusing to approve an H-1B by an entrepreneur.
First, after the January 8th Neufeld memo, the petitioner must show the ability to control the beneficiary. One possible way of doing this is having an independent board of directors that has the ability to hire, fire, and supervise the beneficiary.
The second reason USCIS will argue is that the position is not a specialty occupation. There are reports that USCIS will sometimes state that the CEO position is too generalized and not a specialty occupation. Depending on the position, a strong argument could certainly be made that a CEO is in fact a specialty occupation.
Hopefully, directives from the top will continue to come down to approve otherwise qualified petitions by entrepreneurs, as entrepreneurs are what defines the American dream and in many ways are the lifeblood of our economy.