This presentation explains the various US visa options/alternatives that are available to foreign entrepreneurs, specially those of Indian origin. This presentation was given at Silicon Valley Indian Professional Association's Annual Conference in November 2011.

1. Immigration Initiatives for
Foreign Entrepreneurs
SIPA - Entrepreneurship – Idea Wave 3.0
Sweta Khandelwal
Attorney-At-Law
Principal Attorney at Law Offices of Sweta Khandelwal
November 12 , 2011

2. Agenda
Focus of today’s discussion
• Discuss availability of EB-2 & National Interest Waiver (NIW)
for Entrepreneurs
• Clarify the updates on H-1B for sole shareholders
• Highlight extension of Premium Processing to
(i) EB-1 for Executives/Managers of MNC’s
(ii) EB-5
• Explain the streamlined EB-5 process
• Educated on the increased involvement of the Office of
Public Engagement

3. So, what’s new?
On August 2, 2011, USCIS announced initiatives to promote start-ups
Entrepreneurs
to qualify for
EB-2 & NIW
• Immigrant entrepreneurs may obtain an EB-2 immigrant
visa & may also qualify for a National Interest Waiver
Sole
shareholders
can get H-1B
• Sole employee-entrepreneur can establish an
employer-employee relationship for an H-1B visa.
PP extended;
EB-5 simpler;
Feedback open
• Premium Processing extended to immigrant petitions
for executives/managers of MNC’s
• EB-5 process streamlined based upon stakeholder
feedback
• New engagement opportunities launched to seek
input/feedback to address the unique circumstances of
entrepreneurs, new businesses & startups.

4. Immigrant entrepreneurs and the EB-2
Immigrant Visa (IV)
Elaborated further
Policy changes
What is the EB-2 Immigrant
Visa
Employment-based 2nd preference
(EB-2) IV is available to:
• FN with advanced degrees
(occupation must be a profession)
• FN of exceptional ability
(arts/sciences/business)
• Must benefit US economy,
cultural/educational interests, or
welfare of the US
• FN must have a job offer
• FN’s sponsor must (usually) file a
Labor Certification with the DOL
Key Implications
 The company founded/cofounded by the entrepreneur,
or in which the entrepreneur
has a stake can now sponsor
the entrepreneur’s IV/GC.
 The company and
entrepreneur must comply
with all statutory
requirements
 A job offer from the company
is required – a Labor
Certification must be filed
with DOL

5. Understanding “exceptional ability” &
“cultural/educational interest” and
“welfare of the US”
“I am an entrepreneur
– I must be an Ivy
League dropout, not
someone with a
degree”
• No rule of law that a specific kind
of evidence is required
• Key is the quality and relevance
of evidence submitted
“How does my mobile
application benefit the
national economy,
cultural or educational
interests, or welfare of
the US?”
• “Welfare” not defined in the
statute
• Relative concept
• Limited precedent available
• Creative lawyering works 

6. National Interest Waiver
Policy Changes
• FN must first be eligible for EB-2
• FN entrepreneur will qualify for NIW
if business will create jobs for U.S
workers or enhance US welfare.
• Three pronged test to understand
eligibility for NIW
1.
2.
3.
Employment is in an area that has
substantial intrinsic merit – focus on
area of employment rather than
qualification
Proposed benefit is national in scope
(e.g. jobs created locally will also
create related jobs elsewhere in the
country)
Presents a significant benefit in the
field of endeavor identified in 1
(above)
Key Implications
 No job offer is required from
any company (not even your
own)!
 No Labor Certification is
required to be filed.
 Entrepreneur can petition for
himself/herself and is both
petitioner and beneficiary

7. H-1B Guidance
The Neufeld Memo
THEN
USCIS issued guidance in January
2010 (the Neufeld memo) which
placed a greater emphasis on
documenting the employeremployee relationship than in the
past. This made it extremely
difficult for individuals with an
ownership interest in the
petitioner to obtain a H-1B Visa.
NOW
An beneficiary, who is the sole
owner of the petitioner
company, may be able to establish
a valid employer-employee
relationship for H-1B purposes.
Company’s right to control a sole
owner/shareholder employee can
be demonstrated through a
separate BOD that can
hire, fire, pay, supervise or
otherwise control the beneficiary.
.

8. Premium Processing
Business petitioners
may choose to pay a
special fee to obtain
expedited processing of
their cases. USCIS is
required to process the
petition within 15
calendar days.
• USCIS is expected to open premium processing
for EB-1 multinational manager/executive
petitions w.e.f early 2012
• Premium processing is currently available for EB-2
and EB-3 IV
• Premium service is not currently available for
NIW

9. EB-5
EB-5 makes 10,000 visas
available annually to
immigrant investors who
invest in commercial
enterprises that create at
least 10 U.S. jobs. Investors
may petition independently
or as part of a USCIS
designated Regional Center.
• Extending the availability of premium processing
for certain EB-5 petitions
• Implementing direct lines of communication
between the investors and USCIS
• Providing investors with the opportunity for an
interview before a USCIS panel of experts to
resolve outstanding issues in the petition.

10. Follow-up actions by USCIS
• Public engagements: with entrepreneurs and
stakeholders for input and feedback
• Modification in internal policies and guidelines:
by incorporating input from public engagements
• Internal training for USCIS staff : on the unique
characteristics of entrepreneurial enterprises and
startup companies

11. Proposed Legislation
Immigration Driving Entrepreneurship
in America (IDEA) Act of 2011
 Attracting innovations and job creators: EB-1
GC for STEM
 Exempts STEM Degree Holders from Cap Gap
 Students can have Dual Intent
 New green card category for entrepreneurs
who establish new start-up businesses either
through VC or self funded
 Eliminating Employment-Based Per Country
Levels
 Premium processing for all employmentbased immigrant petitions and applications,
including any administrative appeal any such
petition or application.
 Increased Portability for H-1B Employees
 Simplify the EB-5 visa
Latest Major Action: 9/8/2011: Referred
to House subcommittee.
Start-Up Visa Act of 2011.
 Provides a 2 year conditional visa
 Modifies the EB-5 Visa
 Allows non-US entrepreneurs with
funding from a US investor to get
a visa to start a company
 Visas available to entrepreneurs
living outside the U.S (at least
$100,000 to come from a US
investing entity), H-1B workers,
STEM graduates (at least $20,000
to come from a US investing
entity) under certain conditions
 More than 160 venture capitalists
from across the country have
endorsed the proposal.

12. What’s in store?
Changing legal environment
• Shift in policy
implementation- USCIS
efforts to ensure that
“potential of existing laws
are fully utilized”
• Limited precedent
available: require a
creative and customized
approach to each case
Entrepreneur guidelines
• Explore all available
options
• Stay tuned for the
legislative updates

13. For questions, contact:
The Law Office of Sweta Khandelwal
sweta@khandelwalaw.com
Phone: 408 423 8272; 408 505 2065
www.khandelwalaw.com

14. LEGAL DISCLAIMER
The information provided is intended for informational purposes only and does not substitute for a
lawyer. This information does not constitute legal advice.
We ask that you consult with an immigration lawyer, as your facts are unique and because each
situation requires analysis from many different perspectives. We cannot be responsible if you rely
on information based on this website without the consultation of an immigration attorney.