Posts Tagged 'EB6 visa'

The SKILLS Visa Act- Entrepreneur Visa – House (of cards?)

The SKILLS Visa Act- Entrepreneur Visa – House (of cards?)

By, Tahmina Watson

Chart created by Tahmina Watson. Copyright @ Watson Immigration Law.

Chart created by Tahmina Watson. Copyright @ Watson Immigration Law.

The SKILLS Visa Act that was reported out of House Committee recently, includes provisions for a Startup visa that is called “Entrepreneur Visa”.  Here are my chart, summary and thoughts on the provisions:

Called EB-8 visa, the bill will create a two tiered entrepreneur visa – one for people with venture capital funding and the second for Treaty investors, specifically E2 visa holders.   10,000 visas will be reserved for this category.


Venture Capital-Backed Entrepreneurs: The visa will allow an initial conditional green card, which will have to be removed after two years to receive a permanent green card. The conditional green card will be given only to people who have secured $500,000 (that is half a million dollars) from a venture capital firm or $100,000 from an Angel investor into a new business.

Two years later, the entrepreneur must prove that he/she created 5 full-time jobs and raised either $1,000,000 (one million) in additional funding or in revenue, upon proof of which the conditions will be removed and the entrepreneur will receive a permanent green card.

Treaty investor: A treaty investor will receive a permanent green card if he/she can show the following: (1) They have been in valid E2 status for at least 10 years and (2) that they have employed 5 full time employees continuously for 10 years.

Analysis:   While it should be recognized that the bill attempts to address a lack of a visa for entrepreneurs, the provisions will not accomplish the intended goal of allowing entrepreneurs to obtain a visa.  The problems:

1.  $500,000 from a VC is a very high amount to qualify.

2. Practically speaking, a person living outside the US will likely not have the opportunity to meet or convince an investor to obtain funding for a visa.  Investors will want to meet the entrepreneur in person. It is difficult to obtain a B1/B2 visa for a lot of people outside the US.  There will likely be language barriers.

3. Without being in the US, the person will not be able to set a ‘new commercial enterprise’ or business to accept the funding.  The practical obstacles will prevent people from applying from outside the US.

4.  The people that might be able to apply (if they are very lucky) are those who are in the US already on another type of visa. I imagine a student who has a great idea might be able to secure some funding.  In essence, only a small pool of people might be able to qualify.

5. Anyone running a business will know how difficult it is to run a business successfully.  I do not think it is an unfair requirement to ensure the entrepreneur creates 5 full-time jobs.  My concern lies in the timing of it.  The provision clearly says that “during the 2 year period from which the visa was issued” – meaning from the moment the visa was issued – the entrepreneur must have employed 5 full-time employees and continue to do so for 2 years. In my humble opinion, it takes a while for any business, especially a tech start-up, to get to a stage where they can employ people.  The more practical term would be to show five full-time employees at the time of removing the conditions. Even then, 5 full-time employees can be a high number for many small business owners.

6. Additional funding/revenue of $1,000,000:  It is going to be impossible for the majority of people to meet this requirement.  A VC or Angel investor who has already invested in the company will of course be vested in the success of the company. But success can take time to observe and nurture. Without making an assessment of the ongoing business needs, it will be unlikely that an investor will invest an additional $1,000,000.  Equally, the revenue requirement of $1,000,000 is far too high for most people to meet.  I would challenge the law makers to speak to the Facebook or Google founders and ask them how long it took to generate $1,000,000.  Most businesses will not meet this requirement.  So, it is imperative that this requirement is lowered.

7. The requirements for E2 visa holders is extremely stringent.  10 years is far too long a timeframe to be eligible to apply for a green card.  The Senate bill proposes 2 years to be on a non-immigrant visa status to apply for a green card. This House bill provisions for venture capital backed conditional green cards is for 2 years.  Then why set such a high limit?  E2 visa holders want to be in the US and would have already proven themselves worthy of being a permanent resident within a relatively short time.

8. The same arguments for employing full time employees also apply to E2 visa holders too.  To require a new business to employ 5 full-time people from the start is setting a high bar.  Some businesses may be able to do so, but not the majority.  In addition, to show continuous employment of 5 full-time employees for 10 years is onerous and it is unlikely many E2 visa holders will be able to meet these requirements.

9.  In my opinion, these provisions are too stringent and will not be useable if passed. The new visa will give the appearance of a startup visa but the reality will be that almost no one will be able to apply.  This defeats the purpose of the visa.  I recommend the following amendments:

For venture-capital backed funding

(i) Allow self-funding or funding from family.

(ii) Reduce all eligibility amounts to $100,000.

(iii)  Demonstrate 3 full-time jobs created by the time conditions must be removed.

For Treaty investors:

(iv) Reduce the time to 2 years to be consistent with the venture capital backed provisions.

(v)  Reduce the job creation requirement to 3 full time employees during the 2 years preceding the application for permanent residency.


When (and note I do not say ‘if’- because I am optimistic!) the time comes for Conference to negotiate the Senate and House versions of the provisions, I would suggest that the Senate bill provisions are accepted.  The Senate bill has a fair and reasonable foundation (which still needs a little tweaking) and on the whole will do what it sets out to do – allow entrepreneurs to start companies in the US and create jobs. By virtue of the way it is drafted, the Senate bill automatically will allow a path to permanent residency for E2 visa holders, so a separate, distinct and burdensome provision as laid out in the House bill is unnecessary.  In addition, it must be noted the Senate bill nicely gives preference to STEM degree holders to in this situation.  The House bill has separate provisions for STEM degree holders that will also be difficult to utilize (that’s a different article!).

Therefore, I vote for the Senate bill to be adopted for these provisions and urge Congress to pass immigration reform that will provide a fair and reasonable visa for immigrant entrepreneurs to obtain and thereby provide the opportunity to boost the American economy.

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

Tahmina to Speak on Startup Visa/EB6 visa at ‘Invest in America’ Conference in Miami

It is with great honor that I accept an invitation to speak about the potential EB6 visa at a conference organized by the Minority Chambers of Commerce Miami. The conference will be held in Miami, Florida on August 2nd, 2013.  I am honored to have beeen invited alongside some eminent and distinguished personalities in the field of immigration law and investment visas. Thank you Minority Chambers of Commerce of Miami.

Preliminary Agenda- Invest in America

Preliminary Agenda- Invest in America


See our update from this event! 

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!

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 for joining us!   Thank you also to everyone who attended, for showing your support and sharing your thoughts and opinions.

startuplawtalk workshop may 13, 2013

Startup Law Talk Workshop

StartUpLawTalk Workshop: Invest Visa Provisions- Come Discuss!

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


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. 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


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.


  • received a $250,000 qualified investment.


  • 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:


  • 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.


  • 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,


  • 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


  • 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?)


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 She can be contacted directly at 206-856-3808 or email her at

Copyright @ Watson Immigration Law

Canada launches its very own Startup Visa Act today!

Startup Act Blog pic 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!

The Startup Visa Act 2013- My Comments Part 1

The Startup Visa Act of 2013- my comments Part 1

Startup Act Blog picThe Text of the above bill was finally published this week having been introduced on January 30 2013.  As my regular readers will know, I am an avid advocate of the Startup Visa Act and have been following the various versions that have come before us over the last 3 years.

With the current political climate, there is real hope of comprehensive immigration reform.  In his State of the Union speech yesterday, President Obama said “Let’s get it done!”.   Both parties agree something must be done.  It seems to me that if a Startup Visa is not enacted as an independent statute, it is very likely to be included in the broader immigration reform.

Given the real possibility of something happening in 2013 on the startup visa issue, I am looking closely at the text of this particular bill (even more so than I did in the past).

While I commend the Senators who introduced this bill; and welcome and appreciate the enthusiasm and hard work to get the bill this far, I am nevertheless concerned about it.

My comments today are about eligibility for this visa only.  According to this bill, who is eligible to apply for this visa?

From my reading, it appears the bill allows three types of people to apply:

  1. A person who currently holds an unexpired H1b visa.
  2. A person who is a STEM degree graduate or graduate of computer science or other relevant degree. Or,
  3. A person who owns the controlling shares of a foreign business.

While including the graduates is commendable, my concern is mainly about the other two criteria.

Someone with an unexpired H1b visa:  I see many H1b holders who are waiting in the greencard ‘blackhole.’  I am glad that these folks are specifically included in the bill.  However, there are talented and hardworking people holding various other visas who could contribute to the economy and create jobs.

People on E2 visas are a prime example. They are proven entrepreneurs yet they have no path to a green card.  Some E2 holders have been in the US for decades. Many Sillcon Valley talent have obtained O visas.  There are other types of visa holders too.  Singling out H1b visa holders does not go far enough.

Someone who has controlling shares of a foreign business:  For the people in this requirement, an appropriate visa already exists- L1A.   Not everyone will have had a business abroad.  The criteria is even more restrictive with the tight financial requirements ( I will address that another time).

All in all, am happy to see a new Startup Visa Act but hope it is revised before passing. Stay tuned for part 2 of my comments!!

In sum, the bill does not go far enough to address the problem.  I hope the bill will be given careful consideration and be revised on these issues.

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

Obama on Immigration at the State of Union Speech 2013- “Let’s Get It Done!”

20130212_182330“Let’s get it done!”  That’s what our President said about comprehensive immigration reform in his State of the Union speech tonight.

He said that America remains a place where people can make something of themselves and that we should welcome striving immigrants. He said that right now leaders all  agree time has come to pass Comprehensive immigration reform. He repeated that now is the time to get it done.

He said that we need stronger border security and that we should reduce illegal crossing.  New reform should include to responsible pathway to getting citizenship that will include a penalty, background check and to get back of the line people coming to the US legally. Which leads to real need to fix legal immigration.

He said that we need to attract the best engineers and entrepreneurs to grow the economy.  He said that “we know what needs to be done”. He informed people that a bipartisan group was diligently working to create a bill as he spoke. He said with conviction “Bring me a comprehensive immigration reform bill, I will sign it.  America will be a better place. Let’s get it done”.

His buoyant speech was full of energy. He addressed many different subjects, and several times he said “fix it”.  I am hopeful and excited about what will happen in the coming months on immigration.  There is interest, energy and motivation for comprehensive immigration reform.

Bring it on!


(Below is a copy text of his words)

“Our economy is stronger when we harness the talents and ingenuity of striving, hopeful immigrants. And right now, leaders from the business, labor, law enforcement, and faith communities all agree that the time has come to pass comprehensive immigration reform.

Real reform means strong border security, and we can build on the progress my Administration has already made – putting more boots on the southern border than at any time in our history, and reducing illegal crossings to their lowest levels in 40 years.

Real reform means establishing a responsible pathway to earned citizenship – a path that includes passing a background check, paying taxes and a meaningful penalty, learning English, and going to the back of the line behind the folks trying to come here legally.

And real reform means fixing the legal immigration system to cut waiting periods, reduce bureaucracy, and attract the highly-skilled entrepreneurs and engineers that will help create jobs and grow our economy.

In other words, we know what needs to be done. As we speak, bipartisan groups in both chambers are working diligently to draft a bill, and I applaud their efforts. Now let’s get this done. Send me a comprehensive immigration reform bill in the next few months, and I will sign it right away.

Startup Visa Act To Be Reintroduced.

Startup Act Blog picToday, January 30 2013, Senators Mark Udall and Jeff Flake announced that they will reintroduce the Startup Visa Act.  It has NOT been reintroduced yet, it is an announcement only at the moment.

This bipartisan Act was introduced in 2011 by Senators Kerry, Lugar and Udall.  Regular readers of this blog will know that this particular Act was the second version. There was a Startup Act in 2010 and then again Startup Act 2.0 in 2012.

There is consensus that something needs to be done. President Obama had stated on several occasions that he would sign a bill that created visa options for entrepreneurs.  In his much anticipated speech yesterday, he made clear that he wants immigration options for entrepreneurs.

I will be watching this space to see what transpires. Stay tuned!


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