U.S. Visa Categories Leave Entrepreneurs Few Options

by Carlton Fields

Many of Julie Ferguson’s immigration law clients are entrepreneurs seeking to launch startups in the United States. They come from all over the world, but Ms. Ferguson, who practices in Miami, sees especially high numbers from South America and Europe. In a recent conversation, she talked about the challenges they face because the United States doesn’t offer a startup visa, which would specifically allow entrepreneurs who meet certain requirements to come to or remain in the country.

Q: How would a startup visa benefit the United States?

Ms. Ferguson: It would help protect jobs by preventing some of the things we see now, such as entrepreneurs setting up shop over the border in Canada, which has a startup visa, or the reverse migration of tech workers and entrepreneurs to India.

Q: Do your entrepreneurial clients work mostly in the tech industry?

Ms. Ferguson: No. People often think this issue only relates to tech startups. But our clients include those working in food, fashion, pharmaceuticals, real estate development, and financial services.

Q: In the absence of a startup visa, how are you able to help foreign entrepreneurs?

Ms. Ferguson: In many cases, we’re relegated to using E-2 visas. But it’s treaty-based, which means it can only be used for entrepreneurs from countries with which the United States has a treaty. We have a lot of  entrepreneurial Venezuelan and Brazilian clients, but since there is no E-2 treaty with those countries we can’t use it to help them. Another disadvantage of the E-2 visa is that it doesn’t lead to a green card. The EB-5 investor visa is another option, but it requires that the investor create 10 jobs, which is tough for a startup to do. In limited cases, we can use the L-1 category, although it was originally meant to help big companies move employees around the world. It requires entrepreneurs to set up a foreign affiliate in the United States, and transfer themselves over here. And, the H-1B employment visa, another option, is problematic because the immigrant must be an employee, not an owner. Also, the availability of these visas is strictly limited—there are just 65,000 slots each year, down from 190,000 before the recession.

Q: Why are entrepreneurs interested in coming to the United States, given these difficulties?

Ms. Ferguson: The business climate in the United States is attractive, especially relative to the rest of the world. However, a fair number of entrepreneurs have been discouraged by U.S. policies and are no longer trying to come or stay here. We face a lot of competition from countries including Canada and the UK.

Q: What’s preventing the United States from creating a startup visa category?

Ms. Ferguson: Even though there’s support for entrepreneurs among Democrats and Republicans, Congress can’t accomplish anything related to immigration right now. The Democrats want comprehensive reform; Republicans are pushing smaller pieces of legislation. A lot of horse trading is going on, but nothing happens.

Q: Are there any solutions on the horizon?

Ms. Ferguson: Obama’s November executive order includes some potentially helpful initiatives. And the U.S. Citizenship and Immigration Services started an Entrepreneur in Residence program to help immigration officials become more familiar with the concerns of entrepreneurs.  While such piecemeal adjustments are a start, none are all that substantive—and no changes have been implemented yet.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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