Start a Successful Business? Invest in our Economy? Sorry, No Green Card

By: Sonia Mann, J.D., B.A. Economics

It’s a logical line of thought: “If I start a successful small business in a foreign country, shouldn’t I be allowed to live there?” In countries like the U.K., France, Singapore, and Canada, entrepreneurs are given permanent residency if their business is successful enough to meet certain benchmarks. But in the United States, starting a business, even a successful one, is no guarantee of permanent residency. Even though immigrants are twice as likely as native-born Americans to start a business in the United States, there still is no concrete path towards citizenship for entrepreneurial founders and CEOs.

It is, however, very possible to gain entry or permanent residency in the U.S. through work— and this medium is actually very common. There are five employment-based immigration categories, as well as a number of visas allowing foreign nationals to work or invest in the U.S. The most popular and highly used employment-based visas, which include H-1B (temporary skilled worker), L-1 (intracompany transfer), and EB-5 (foreign immigrant investor) require a job offer or substantial investment ($500,000-$1 million U.S.D) in a U.S. based commercial enterprise. The H-1B visa, becomes particularly problematic as it has backlog that can take years, and the number of applications permitted annually reaches capacity within hours of USCIS opening the acceptance window. Canada, in contrast, has seized on this shortcoming by advertising its “start-up visa” on billboards across the Silicon Valley, targeting temporary visa holders stuck in an uncertain and years-long path to U.S. permanent residency. Considering 87 percent of billion-dollar startups had an immigrant in a prominent founding role, the Unites States stands to lose a great deal of talent and entrepreneurial benefits if it does not address this discrepancy as a major problem.

To Congress’ credit, there have been three attempts to create a sixth employment-based immigrant Visa category—an “EB-6” if you will—aimed at foreign nationals who start successful small businesses. All efforts have required that the start-up in question raise a certain amount of venture capital funding and create a certain number of U.S. based jobs. An “EB-6” would incentivize entrepreneurs to take advantage of the United States’ highly developed technology, infrastructure, research, and venture capital sectors. It would also create a path for skilled F-1 student visa holders who start a company in their dorm room to remain in the country after graduation, rather than start that company in their home countries or Canada—or not at all. The EB-6 would offer a more approachable means of economic investment opportunity towards a path to permanent residency than the current EB-5 program currently offers. The minimum monetary threshold would be less, and the areas of business development and investment would be broadened to include more than underprivileged or underdeveloped geographic areas.

In 2016, the Department of Homeland Security created the International Entrepreneur Rule, which would “parole in” entrepreneurs and start-up founders. Parole is not a true admission into the United States—it’s often used in humanitarian emergencies or other time-constrained situations, and offered on a case-by-case basis by DHS. Under this rule, applicants could be eligible for up to a two-and-a-half-year period of parole for themselves and their families if they own a certain percentage of their business and the entity meets certain viability and growth standards. They could renew the parole for one additional two-and-a-half-year period if they continue the ownership threshold, financial growth, and attract additional public or private funding. After those five years, these individuals are eligible for an O-1 extraordinary achievement visa or potentially an EB-2 immigrant visa with a National Interest Waiver.

Despite campaign promises of job creation and admission of only highly-skilled immigrants, the Trump Administration has attempted to rescind International Entrepreneur Rule. Although the National Venture Capital Association won a lawsuit to stop the repeal in December 2017, their lawsuit was limited to addressing the DHS’ method of repeal, not the ultimate process of repeal. Although the rule is legally still in place and USCIS is accepting applications through its website, DHS says it is working on a final repeal notice. Ultimately, International Entrepreneur Parole was never intended to be a final, workable solution. Our hope is that Congress will create a permanent path to citizenship for immigrant small business founders and CEOs of start-ups without the high financial thresholds and stringent standards currently required by the EB-5 program. Our history is rich with examples of how America is ultimately a better place with immigrants who create new and innovative businesses that add diversity, technology, culture and a hard-work ethic to our landscape.

Sonia Mann is an Associate Attorney at Parikh Law Group and specializes in Personal Injury, Immigration and Real Estate matters. Sonia is the Managing Attorney at Parikh Law Group’s Columbus, Ohio location.