On August 2, 2011, United States Citizenship and Immigration Services (USCIS) published revised guidance facilitating eligibility of foreign national entrepreneurs for immigration as well as H-1B nonimmigrant visa status.

In its FAQ on permanent residence, USCIS now allows a foreign entrepreneur to act as both the petitioner and the beneficiary of a “green card” petition under the EB-2 National Interest Waiver (NIW) category. Additionally, the FAQ states that the foreign entrepreneur may qualify under the NIW category without a job offer if the entrepreneur can demonstrate that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States. USCIS states: “For example, the entrepreneur may not be taking a job opportunity from a U.S. worker but instead may be creating new job opportunities for U.S. workers.  The creation of jobs domestically for U.S. workers may serve the national interest to a substantially greater degree than the work of others in the same field.”  USCIS also confirms in its FAQ that a foreign entrepreneur may qualify as the beneficiary of an EB-2 Exceptional Ability Petition.  EB-2 Exceptional Ability requires showing that the beneficiary meets certain criteria of excellence in the arts, science or business, and an approved labor certification from the U.S. Department of Labor (DOL).  Because DOL does not grant labor certification if the sponsored worker is an owner or founder, self-sponsorship is not available to entrepreneurs in the EB-2 Exceptional Ability category.

USCIS will also now allow foreign entrepreneurs to sponsor themselves on an H-1B nonimmigrant visa petition. Prior to this revised FAQ, USCIS has required a traditional employer-employee relationship to qualify for an H-1B visa, and has not allowed a sole owner to be both petitioner and beneficiary of an H-1B visa petition. USCIS now allows entrepreneurs to self-petition “if the facts show that there is a right to control by the petitioner over the employment of the beneficiary. For example, if the petitioner provides evidence that there is a separate Board of Directors which has the ability to hire, fire, pay, supervise or otherwise control the beneficiary, the petitioner may be able to establish an employer-employee relationship with the beneficiary.”

These revisions do not require congressional approval, because they are not considered changes to current immigration law. Rather, these changes are viewed by USCIS as clarifications to how existing immigration law is applied with the apparent objective of allowing more entrepreneurs to gain entry into the United States.

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