Invest Visa Senate Amendments: A Proud Moment for Watson Immigration Law

Moran Immigrant Entrepreneur Amendment Summary as submitted with the amendments in Senate.

Today is a very proud day for Watson Immigration Law.

Our readers will know that the Startup Act has been a passion of this lawfirm for the last several years. So, when the comprehensive immigration reform bill S.744 was released, we wasted no time in diving into the details of the Invest Visa. You may recall our summary, our analysis and our chart.  We immediately followed up with the Startup community to get their feedback. We have spent many a night on this very issue. It was through this passion that arose the opportunity to assist Senator Moran’s office with their amendments. We are proud to have had the great privilege of working with Senator Moran’s office in helping improve the bill.  The provisions will undoubtedly help the American economy by creating jobs at a time when it is so necessary.  The provisions will help retain brilliant minds (that we might otherwise lose to Canada and their Startup Act! Don’t miss the bill board image in the memo!). The provisions will also help immigrant entrepreneurs achieve their American dreams. It is a win win for everyone, if you ask me!

I want to take this opportunity to thank the Senator’s office and his staff for the tireless efforts on this issue.  Jason Wiens, the Legislative Director deserves a special thank you for his dedication and hardwork.  Thank you for letting WIL be part of this venture.

I must also thank two important people who have been superstars on this issue for several years.  Craig Montuori, the founder of Politihacks and Munly Leong, an entrepreneur himself.   They both represent and manage the popular website www.startupvisa.com.  Their Facebook page has almost 4000 very active followers. Our complimentary skills and knowledge helped us accomplish this huge goal. Thank you Craig and Munly, for your incredible insights, knowledge and dedication to this cause.

I also want to thank our clients who have participated and supported this huge task.  We really needed your support and you gave it to us!

Yesterday, the amendment was filed!  Today a press release was issued. Now comes the time to vote on the matter. Every vote matters.  I urge you to call your senators and ask them to vote yes to these amendments! If you are a STEM degree student or graduate, or you are visa holder with ambitions of having your own startup, you must call your Senator!

See below for a copy of their press release. Here is also a copy of the memo circulated in the Senate.

FOR IMMEDIATE RELEASE – June 13, 2013

Contact: Katie Niederee or Trent Sterneck

Phone: 202-224-6521

SEN. MORAN OFFERS AMENDMENT TO IMMIGRATION BILL FOCUSED ON INNOVATION AND JOB CREATION

“I hope my colleagues will join me in supporting changes to the legislation that will result in the creation of new jobs for Americans.”

 

Washington, D.C. – Today, U.S. Senator Jerry Moran (R-Kan.), author of Startup Act 3.0, offered an amendment, #1256, to the Gang of Eight immigration bill to strengthen the United States’ position to win the global battle for entrepreneurial talent.

“The immigration debate is an opportunity to create jobs for Americans by making certain highly-skilled and entrepreneurial immigrants are able to start new businesses and contribute to the growth of U.S. companies,” Sen. Moran said. “If we miss this opportunity, we risk losing the next generation of great entrepreneurs and the jobs they will create. The status quo is not acceptable, and our legal immigration system is broken. I hope my colleagues will join me in supporting necessary changes to the legislation that will result in the creation of new jobs for Americans.”

The immigration bill reported by the Judiciary Committee recognizes the importance of entrepreneurial immigrants by creating new visas for them and awarding points for the merit-based visa for successful entrepreneurship. Yet, Sen. Moran believes the bill could be improved to more accurately reflect how new businesses are formed, grow and hire workers. Highlights include:

• Clarifying that jobs created by immigrant entrepreneurs are held by Americans
• Reducing paperwork and reporting requirements so entrepreneurs can spend more time building and growing their businesses
• Allowing entrepreneurs’ family members to invest in their startup company
• Adding flexibility to startup employee compensation to account for geographic and industry differences

With the right changes to the bill, an entrepreneur visa has the potential to create hundreds of thousands of needed jobs for Americans. If we fail to improve our immigration system – one that currently tells these entrepreneurs and highly-skilled individuals “we don’t want you” – immigrant entrepreneurs will take their intellect and skills to another country and create jobs and economic opportunity there.

Sen. Moran’s Amendment is strongly supported by startups, investors, business leaders and immigration attorneys across the country including:

106 Miles, 1776 DC, Amicus, Blue Label Labs, Bluefields, CONNECT, Convo, E2 Visa Reform, Engine Advocacy, Foundry Group, Gazelle Labs, Geocko, Hackers & Founders, Indexor, LawGives, Lean Startup Circle, MasterPlans, Modulated Imagining, National Small Business Association, PolitiHacks, Prowant Law, Revolv, RocketSpace, Silicon Valley Leadership Group, SoftTech VC, StartupCity Des Moines, StartupDigest, TAO Pivot, TechStars, Virginia Tech Entrepreneur Club, Vysion Communications, and Watson Immigration Law.

Click here to read amendment #1256.

Click here to read a one-page summary on Sen. Moran’s amendment to the legislation.

Click here to watch Sen. Moran’s floor speech discussing his amendment.

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Senator Moran Files Amendments To The Invest Visa Provisions For Senate Floor (Startup Act/X-visa/EB6)

Senator Moran has been a champion and advocate for jump starting the economy through the Startup Visa Act. He introduced the Startup Act in past years and has worked relentlessly to make it a reality.  As we have seen, the Startup Visa Act provisions were included in the broader bill for comprehensive immigration reform.  Now called Invest Visa, Senator Moran promised to improve the provisions.  On May 22, 2013, he spoke at the Senate about his intention to file such amendments. See video below. True to his word, Senator Moran and his hardworking office, filed the amendments today.

Watson Immigration Law is proud to have had the extreme privilege to assist the Senator’s office with these amendments. We are grateful to have had the opportunity.  I thank Senator Moran and his very able to staff for taking the initiative and for their dedication to this issue. Now the waiting begins for the debate and counting votes! Please call your Senator’s office and ask them to vote yes to these amendments!

Great summary of immigration reform bill in The Seattle Times- includes our client!

Another front page immigration story and it features our client! Thank you Sridhar Katta for having your voice heard and thank you Lornet and Kyong for taking the time to learn this complex bill and providing such a great summary! To all interested in immigration reform- please have your voice heard- call your representatives, they need to hear from you! They keep a list of yay/nay calls and mostly nay calls are being made. Immigration reform needs your support!

 

Here is a link to the story. 

Startup Visa Act (Invest Visa) workshop a success!

On Monday May 13, 2013, our Startup Law Talk workshop was on the Startup Act/Invest Visa provisions. We had a good turn out and a really lively discussion!! Members of the local startup community joined us to learn about the provisions and discuss the details. I learned more about the business of being a startup. I also learned more about investors investing in a startup. We had a couple of important guests join us on Google Hangout for a short while.  Thank you Craig Montouri and Munly Leong from http://www.Startupvisa.com for joining us!   Thank you also to everyone who attended, for showing your support and sharing your thoughts and opinions.

Startup Law Talk Workshop

Stuck on H1b, F1 or Other Visa? Want Your Own Startup? Newly Proposed Startup Act (Invest Visa) May help! Come Learn More!

A bill for Comprehensive Immigration reform “The Border Security, Economic Opportunity, and Immigration Modernization Act” was released two weeks ago.  The bill specifically addresses provisions for the Startup Act that many of us have been waiting for.  Named the “Invest Visa”, the provision seeks to provide visas for immigrant entrepreneurs starting companies in the US. If you feel stuck on your H1b, F1 or other visa but are desperate to have your own startup, the Invest Visa (Startup Visa Act) will create that path for you. 

Please come and learn about the provisions, discuss the details and make suggestions to improve the provisions so that YOU can benefit from it.  We hope to have some subject-matter experts join us to discuss the bill too. Here are some links:

1. Summary of provisions:  http://watsonimmigration.wordpress.com/2013/04/17/startup-visa-provisions-under-comprehensive-immigration-reform-bill-2013/

2. Analysis: http://watsonimmigration.wordpress.com/2013/04/23/invest-visa-startup-visa-provisions-here-comes-the-analysis/

This is a very exciting time in immigration law and for high-skilled immigrants.  Please come and participate in a discussion that could potentially shape these provisions! Your input is crucial!

Monday May 13, 2013. Networking starts at 5:30, workshop from 6:00 to 7:30 PST. 

You can join us on Google Hangout if you cannot join in person! 

Workshop fee is $10:00 for non-Eastside Incubator members.

Address:

Eastside Incubator
2711 152nd Ave NE – Building 6
Redmond, 98052

We will look forward to seeing you there.

REGISTER

StartUpLawTalk Workshop: Invest Visa Provisions- Come Discuss!

Calling all immigrant entrepreneurs! Come discuss the Invest Visa (Startup Visa Act) provisions! See below.

STARTUP ACT (INVEST VISA) PROVISIONS RELEASED! LEARN HOW IT AFFECTS YOU!

May 13,2013 –     Time: 5:30 pm – 8:00 pm

A bill for Comprehensive Immigration reform “The Border Security, Economic Opportunity, and Immigration Modernization Act” was released two weeks ago.  The bill specifically addresses provisions for the Startup Act that many of us have been waiting for.  Named the “Invest Visa”, the provision seeks to provide visas for immigrant entrepreneurs starting companies in the US.

Please come and learn about the provisions, discuss the details and make suggestions to improve the provisions so that YOU can benefit from it.  We hope to have some subject-matter experts join us to discuss the bill too.

http://www.startuplawtalk.com/startup-visa-provisions-under-comprehensive-immigration-reform-bill-2013/
 Here is a summary of the provisions.

This is a very exciting time in immigration law and for high-skilled immigrants.  Please come and participate in a discussion that could potentially shape these provisions! Your input is crucial!

Networking starts at 5:30, workshop from 6:00 to 7:30.

We will have online participation through Google Hangout, so join us from wherever you are!

We will look forward to seeing you there!

Location: Eastside Incubator, 2711 152nd Ave NE – Building 6, Redmond, 98052

REGISTER HERE.

Invest Visa (Startup Visa) Provisions – Here comes the analysis!

This article is a working document and will be updated as I continue my analysis, discuss with my colleagues and other start-up business owners. Please revisit us to see if the article has been updated. Thank you for reading. 

Invest Visa (Startup Visa) Provisions – Here comes the analysis!

On April 17, 2013, a new bipartisan bill for comprehensive immigration reform, named The-Border-Security-Economic-Opportunity-and-Immigration-Modernization-Act-of-2013, was released. The bill was created by the ‘Gang of Eight’ senators, and I thank these senators for their extraordinary efforts. Among other things, the bill seeks to find a path for entrepreneurs to come to the US and start their businesses. Titled the “Invest Visa,” these provisions are in line with the well-known ‘Startup Visa Act’ and, specifically, the 2011 version as introduced by Senators Lugar and Udall. Last week when the 2013 bill was released, I wrote an article laying out the requirements of the Invest Visa. In this article I seek to analyze the provisions, for some considerable amendments are required before the proposed legislation is enacted.

The bill introduces new terminology and definitions. Let’s start from the top (I am not addressing every definition in this particular article): The new law would allow a “qualified entrepreneur” to apply for a non-immigrant or immigrant Invest Visa. Who is a qualified entrepreneur? According to the text, the qualified entrepreneur is someone who:

1. Has significant ownership in a US business. Significant ownership is not defined in the bill. What will be considered significant? Is 20% significant? Or 30%? For example, the E2 visa requires a minimum 51% ownership to prove treaty country ownership. What guidance will we have for the Invest visa? When important terms are not defined, or guidance is not provided, the USCIS adjudicators are left to interpret the law themselves, and quite often the interpretation is subjective and inconsistent.  At the same time, leaving definitions open to interpretation can sometimes be helpful too. From a lawyer’s perspective, you could try to argue the case to suit your client’s situation. Nevertheless, it is important that the standard is clear so that applicants can provide adequate documentation and adjudicators can determine consistently whether the standards have been met.
2. He/she is employed in a senior executive position. I don’t see a problem with the requirement.
3. He/she has a business plan, that must be submitted to the USCIS. It is not new that business plans are used in immigration petitions. For investment visa petitions (EB5 and E2), it is an essential evidentiary document. In other cases, where a new company is applying for a visa—for example, L1 or H1b visas—a business plan is also required. But until this bill, as far as I am aware, it has never been written into a statute (I will be checking!). While it is reasonable to require a business plan in the Startup context, it is important to ensure flexibility is allowed, particularly when an Invest Visa applicant seeks to renew the visa.  Under the existing laws, especially in the EB5 visa context, the business plan is given great weight and any deviation from it can result in a denial of renewal of the visa. This sort of rigid application will not be practical in the startup context. It is well know that a startup business (think technology) can (and must) change direction depending on user feedback, market research and other factors. For example, if a product created is not working in the way it was intended, the strategy must change or ‘pivot’ instantly so that the business does not fold. Therefore, while there may be a business plan to ensure that there is an ultimate goal, there must be flexibility in the business plan to withstand change—and this must be recognized. Otherwise, when reviewing the business plan in the context of visa renewal, the adjudicating officer may apply rigid interpretations which will jeopardize the success of the petition.
4. He/she had a substantial role in the founding or early stage growth and development of the US business entity. Again, there is no definition of substantial role. What evidence will we need for petitions? I can think of organizational charts, affidavits, emails, and similar proof of actual work. Is that what the senators are thinking?

To be eligible for an initial Invest Non-immigrant Visa, the qualified entrepreneur must prove the following:

1. Has demonstrated, during the 3-year period ending on the date on which the alien filed an initial petition for non-immigrant petition, that:
   1. A qualified venture capitalist (etc.) has invested at least $100,000 in the alien’s US business. Or,
   2.  Alien’s US entity has created at least 3 full-time jobs AND during the last 2 years, generated at least $250,000 in annual revenue in the US.

This means that a qualified entrepreneur will already have a US business. Is it assumed that the person applying for the Invest Visa is already here? Or is it assumed that the person is conducting the operations of his/her business from abroad? Is it practical and realistic that a person operates a business from outside the US, create 3 full-time jobs and generate $250,000? In my opinion, this section requires much more clarification and reconsideration.

In my opinion, the eligibility requirements need to be clarified further. There should not be the requirement to have an entity in the US already with certain jobs already created or revenue generated. It is not practical in my opinion to conduct business without being present.  I suggest the requirements are (1) secure $100,000 from an investor, or (2) show funds of $200,000 (can be personal funds).

Invest Non-Immigrant Visa: A non-immigrant visa is meant for those who intend to remain in the US temporarily.  However, if someone is investing a huge amount of money and dedicating her life to her business, it is unlikely that she will want to leave the US after a certain period. The visa should be dual intent one, similar to an H1b, L1, and O visa. The applicants must have a path to a green card (which I assume is the intention).

The visa can be renewed in 3-year increments. If the business does not meet requirements for visa renewal, the provisions could mandate a discretionary 2 additional years, 1 year at a time, totaling 5 years. At least with H1b or L1A visas, there is a path to legal permanent residence. The Invest Non-immigrant Visa creates the same problems as the E2 visa (no direct path to a green card), except the Invest Visa has more stringent terms than the E2.

The Invest Non-immigrant Visa allows:

• Initial admission for 3 years
• Renewal for additional 3-year increments, if during the most recent 3-year period the alien did the following:
  • Created at least 3 full-time jobs.  Important to note the following- wages for the employees must be 250% of federal minimum wage. In Washington State this year, the minimum wage is $9.19/year, and 250% of this wage is $22.96 per hour, which seems fair. Currently H1b regulations require that the employee is paid the ‘prevailing wage’ of the metropolitan areas. Often those wages are significantly higher than the federal minimal wage. For example, at federal minimum wage in Washington, the annual salary is $19,115, whereas according to these terms, the employee of an Invest Visa business owner will earn a salary of at least $47,756. A typical software developer’s salary is over $50,000. Therefore, I believe the standard 250% higher makes calculating wages easier and likely less than the prevailing wage requirement of the H1b.  I can see why one may want to gasp at first at 250%, but it is a reasonable requirement.

AND

• received a $250,000 qualified investment.

OR

• Created at least 3 full-time jobs AND during the 2-year period ending on the date extension applied for generated at least $200,000 annual revenue.

• May obtain a renewal for up to 2 one-year periods for a waiver from the above if the alien has made substantial progress (given how hard it is to satisfy requests for further evidence (RFE) these days, what guidance is there regarding ‘substantial progress’?) and such a renewal is economically beneficial to the US. Will this have the national interest waiver standards? What evidence will they look at? Often it is a local benefit, rather than national benefit, to have employment.

At this point, I would like to make an observation. The bill states that the applicant will have to demonstrate that she generated $250,000 during the 3-year period ending on the date on which the alien filed. The question is this: What is the 3-year period? Do we submit tax returns for each year, or do we submit bank statements starting from the month the application is filed and go back 36 months?

Invest Immigrant Visa: There are two types of Invest Immigrant Visas. They have the following requirements:

Non-STEM:

• Must be a qualified entrepreneur.
• Maintained valid non-immigrant status (NIV). Why NIV only? What about the person who is from India, on H1b extension, with approved I-140 waiting for his priority date to become current? This is another reason the NIV option MUST be dual intent because otherwise he cannot go from such status to starting his own company.
• During the 3-year period ending on the date the extension was filed, the alien must have:
  • Significant ownership in a US business entity that has created at least 5 full-time jobs AND has received $500,000 qualified investment (too high an amount? Why not $250,000?) in the alien’s business.

OR

• Has significant ownership in US business that created at least 5 full-time jobs AND generated at least $750,000 annual revenue during the last 2 year period. AND, no more than 2 other aliens have  received non-immigrant invest visa status on the basis of alien’s ownership of such business.

In my opinion, $750,000 is far too high and should be reduced. The first year of an average business often does not generate enough. Often it takes 5 years for a business to be sufficiently established. Did the senators do research on what a reasonable amount of revenue is for a startup?

STEM option:

• Must be qualified entrepreneur
• Maintained valid non-immigrant status (see above comments) in the US for at least 3 years prior to filing for such status.
• Holds an advanced STEM degree,

AND

• During the 3-year period ending on the date the alien files a petition under this section:
  • Alien has significant ownership in a US business that created at least 4 full-time jobs AND received a qualified investment of at least $500,000

OR

• Alien has significant ownership in a US business that created at least 3 full-time jobs AND during the 2-year period ending on such date generated at least $500,000 (accumulative?)

Summary: 

The provisions are definitely workable and I am  elated these provisions are covered in the bill. These are the essential changes I would like to see:

1. Amend the initial eligibility requirements.
2. Amend non-immigrant to dual intent visa.
3. Decrease the non-stem immigrant visa annual revenue requirement from $750,000 to $500,000..

While I believe the bill seeks to achieve much through these provisions, without fundamental amendments to the provisions, they will not be usable.

As I read more and understand more, I will update this article. In the interim, the above provisions represent significant progress towards immigration reform and for immigrant entrepreneurs.

* Copyright 2013 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

______________________________________________

Tahmina Watson is the founder of Watson Immigration Law based in downtown Seattle. She was a practicing barrister in London, UK, before immigrating to the United States herself. Tahmina has been practicing US Immigration and Naturalization law since 2006. While her practice includes family-based and employment-based immigration, she has a strong focus on immigrant entrepreneurs and start-up companies. More information about her can be found at www.watsonimmigrationlaw.com. She can be contacted directly at 206-856-3808 or email her at tahmina@watsonimmigrationlaw.com.

Copyright @ Watson Immigration Law

Startup Visa Provisions under Comprehensive Immigration Reform Bill 2013!

The comprehensive immigration reform bill 2013 finally provides the long and anxiously awaited Startup Visa Act provisions.  Titled – Investing in New Venture, Entrepreneurial Startups and Technologies, the provisions include a non-immigrant visa category and an immigrant visa category.

A qualified entrepreneur can apply for this visa.  A qualified entrepreneur means:

1. Has significant ownership in a US business
2. Is employed in a senior executive position
3. Submits a business plan to the USCIS, and
4. Had a substantial role in the founding or early stage growth and development of such US business entity.

Invest Non-Immigrant Visa:

• Initial admission for 3 years
• May be renewed for an additional 3 years, if during the most recent 3 year period alien did the following:
  • Created at least 3 full-time jobs AND received $250,000 qualified investment.

OR,

• Created at least 3full-time jobs AND during the 2 year period ending on the date extension applied for generated at least $200,000 annual revenue.
• May obtain a renewal for up to 2 one-year periods for a waiver from the above if the alien has made substantial progress and that such renewal is economically beneficial to the US.

Invest Immigrant Visa: There are 2 types:

First

• Must be qualified entrepreneur
• Maintained valid non-immigrant status in the US for at least 2 years.
• During the 3-year period ending on the date extension filed alien has
  • Significant ownership in a US business entity that has created at least 5 full-time jobs AND has received $500,000 qualified investment in the alien’s business.

OR,

• Has significant ownership in US business that created at least 5 full-time jobs AND generated at least $750,000 annual revenue during the last 2 year period. AND, no more than 2 other aliens have  received non-immigrant invest visa status on the basis of alien’s ownership of such business.

Second

• Must be qualified entrepreneur
• Maintained valid non-immigrant status in the US for at least 3 years prior to filing for such status.
• Holds an advanced STEM degree, AND
• During the 3-year period ending on the date the alien files petition under this section:
  • Alien has significant ownership in US business that created at least 4 full-time jobs. AND received qualified investment of at least $500,000

OR,

• Alien has significant ownership in US business that created at least 3 full-time jobs. AND during the 2-year period ending on such date generated at least $500,000.

At first reading, these provisions seem reasonable to me and I think will greatly benefit the US economy.  It does not restrict the type of business entity/industry.  There is no specified percentage of ownership in business.  There are definitions of certain terms and other important smaller details.  I will include them soon.

However, the Invest Non-Immigrant visa should be amended to dual intent visa. It appears that Non-immigrant Invest visa is 6 years (or 5 if they need a waiver) maximum. I would hope and guess that the intent of the senators might have been to have these people apply for the Invest Immigrant visa in due course (perhaps akin to L1A to EB1(3) multinational transfers).

Entrepreneurs get 10 points in merit-based assessemnt if they have at least 2 employees in zone 4 or 5.  Job zones are based on the ONET determination of how much preparation is required. Zone 5 requires the most preparation and 1 requires little/none. So, this would mean for entrepreneur to get 10 points, the jobs have to be what we currently call specialty occupations (H1b term).

As I read more and understand more, I will update this article. In the interim, the above provisions sum up a great addition to immigration reform.

*Copyright 2013 by Watson Immigration Law. All rights reserved. This material may not be published, broadcast, rewritten or redistributed.

 

Immigration reform includes- “buy a house- get a US residence visa!”

In all the discussions of immigration reform, I don’t think much mention was made of this provision- the JOLT Act – (Jobs Originated through Launching Travel Act. of 2013).  Some important gems are added to the bill including premium processing for tourist visas at the consulates.

Ever since there was introduction of the bill that stated that one could reside in the US by purchasing a house, I have had frequent questions about when that law will pass.  Well, now is the time to talk about it again! A reminder of our article iss here -”Buy a house and get a green card”

The Comprehensive Immigration Reform Bill 2013 includes provisions on buying a house to reside in the US. Here is a summary:

• Canadian citizens and (their spouses) who are over 55, maintains a house in Canada and rents or owns a house in the US, can reside in the US for upto 240 days in  any given year (8 months). 
• Retiree visa:
  • Buy one or more house(s) for at least $500,000 in cash
  • Maintains ownership of residential property worth at least $500,000,
  • And resides more than 180 days in a residence in the US in that is worth more than $250,000.
  • Spouse and children can reside too.
  • Cannot engage in work except for employment that is directly related to the manageement of the residential property worth $500,oo0.
  • Over 55 years old.
  • Has health insurance.
  • Not inadmissible
  • May renew visa every 3 years.

I think this means that though one cannot actually work under this visa, they can perhaps manage their properties (and perhaps receive rent?).

As I read and understand more, I will edit this blogpost.  Here is the nutshell for everyone who has been waiting for this.  A great addition to the current immigration system!

Canada launches its very own Startup Visa Act today!

 My readers may recall that I revealed what makes me very envious these days- that is the Start-Up Visa Act by Canada.  Today is the day the Canadian Start-Up Visa Act will launch.   Start-Up visa candidates will partner with local financial investors and mentors to obtain Canadian visas.  There are 2,750 visas reserved for this 5-year pilot program. 

Canada’s win is indeed our loss.  Canada will gain new job creation and boost to their economy- exactly what we need in the US.  It would not surprise me, if those who are fed up of the lack of action in the US, apply for this visa in Canada.

I sincerely hope that the immigration bill promised to be revealed in a week or two for immigration reform will address the Start-Up Act issues and create a visa for the brilliant minds who want to stay in the US- that is, if we haven’t lost everyone to Canada already!