Foreign Entrepreneurs Can Still Get to U.S. Even Absent Obama Rule

By Laura D. Francis

The Obama administration’s international entrepreneur rule may be on its last legs, but there are other avenues for foreign nationals who wish to start businesses in the U.S.

“There is this clamor to have the ability for an entrepreneur to come to America and start the next Apple,” Yeu Hong of Stone, Grzegorek & Gonzalez in Los Angeles said June 14. “It’s just not that simple” as showing up and founding a business, he said.

Congress needs to create a visa for entrepreneurs, Hong said at the American Immigration Lawyers Association’s annual conference in San Francisco. The existing routes are really “at the margins” of what entrepreneurs need to start businesses here, he said.

They include temporary visas for business visitors, employees transferring to the U.S. from foreign companies, investors from countries with which the U.S. has a treaty, and individuals with extraordinary ability.

Immigration attorneys should be creative and “think outside the box” about what option might work for a particular entrepreneur, Hong said.

The international entrepreneur rule was intended to provide another route for entrepreneurs to come to the U.S., Allen Orr of the Orr Immigration Law Firm in Washington, D.C., said. But that rule is “dead,” said Orr, who serves as AILA’s second vice president.

Vestige of Obama Administration

The regulation was finalized mere days before President Donald Trump took office in January 2017. It creates a program under which the Department of Homeland Security allows foreign entrepreneurs to enter and start businesses if they meet certain capital and job-creation criteria.

But the program never really got off the ground. The Trump administration delayed its start shortly before the regulation was to go into effect, and it only launched the program after a federal judge ordered it to.

Only 10 people have applied for the program, and none have been approved.

The DHS has since issued a proposal to end the program. The National Venture Capital Association—which sued over the delay last year—has vowed to fight to keep the program alive.

Alternatives Have Limits

One potential alternative is the L-1 intracompany transferee visa, Orr said. Some entrepreneurs may seek venture capital funding in Canada or Mexico and later use an L-1 to open a new office of that business in the U.S., he said.

A B-1 business visitor visa also can work for some entrepreneurs, but “you can fit it in only in certain situations,” Maria Casablanca of Akerman LLP in Miami said.

The temporary visa allows for certain limited, business-related activity such as conducting independent research and negotiating contracts, but it doesn’t allow the person to work, she said.

And the federal government has been giving extra scrutiny to B-1 visas since information technology consulting company Infosys was caught using them instead of H-1B skilled guestworker visas, she said.

Purpose of Executive Order

Another potential is the E-2 treaty investor visa, but that also has its limits, Hong said. The temporary visa allows foreign nationals to make investments and work in the U.S., subject to certain conditions, if they’re from a country that has a treaty of commerce and navigation with the U.S.

President Donald Trump’s Buy American and Hire American executive order is good news for potential E-2 investors, Hong said. E-2 applicants can say they are “going to do what the executive order wants": create jobs for U.S. workers, he said.

But there’s also the caveat that at least some of the treaties that are the basis for the visa may not continue, Hong said. The Trump administration still is working to renegotiate NAFTA, and the U.S. treaty with Ecuador has been dissolved, although Ecuadorean E-2s will remain for the next 10 years, he said.

The O-1 visa for individuals with extraordinary ability or achievement is another option, especially for those entrepreneurs who don’t have the capital to invest in or start a business, Rachel Baskin of the Baskin Law Firm in Oceanside, N.Y., said.

O-1 applicants need proof of awards, press coverage, and other accolades, but “if you plan for it, it works,” she said.