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Greg Siskind on Immigration Law and Policy

New Initiatives Intended to Make Immigration Easier for Entrepreneurs

Rating: 3 votes, 5.00 average.

The Obama Administration released new FAQs today on H-1B visas and EB-2 green cards that are intended to make it easier for entrepreneurs to qualify in the two visa categories. That's good news, though reading the documents makes me REALLY skeptical  change will come. For example, on the H-1B memo released today, USCIS is backtracking from the blanket statement in the 2010 Neufeld memo which basically reversed decades of USCIS practice of allowing self-employed professionals to take advantage of the H-1B category if they could demonstrate they would have enough funds to be paid the prevailing wage. I work on a lot of doctor cases and this was a common way for doctors to take on small town medical practices, particularly in states that outlaw hospitals directly employing doctors. No more since the 2010 memo. So when I heard about today's memo, I was hoping for a real reversal. But USCIS is still hung up on a notion of "control" that is precisely opposite of entrepreneurship. Entrepreneurs want to be the boss, not the bossed, and the new H-1B memo only solidifies USCIS' wrong-headed thinking.


And let's face it - USCIS backed itself in to a corner when it decided to target Indian staffing companies last year. They decided to nail them by focusing on the concept of "control" and saying that placement of professionals at third party cites wouldn't qualify for H-1B employment in many instances because the sponsoring employer wasn't actually controlling the day to day employment. Unfortunately, by taking a rigid view on "control" of employment, entrepreneurs are basically out of luck when it comes to using the H-1B.The new memo merely says USCIS can look at the totality of the circumstances, but I don't see any change without an outright revocation of the Neufeld memo or some new interpretation on "control" that clearly exempts self-employment.


The EB-2 memo really says nothing new. It merely restates long standing law that entrepreneurs are eligible for national interest waivers. There is helpful language, however, that states that


The entrepreneur who demonstrates that his or her business enterprise will create jobs for U.S. workers or otherwise enhance the welfare of the United States may qualify for an NIW. 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.


But EB-2 is meaningless for Indians and Chinese in long backlog categories. And good luck getting USCIS examiners to view the memo in the spirit it is offered. Expect to be challenged that the job creation is not "national" enough or expansive enough. Those who practice in the EB-1 area know that examiners operating under a culture of no can come up with a million reasons to deny a case when there are no bright line tests limiting their discretion.


We're also seeing some additional reforms to the EB-5 visa category which are encouraging, though some fundamental problems with the program that make it unattractive will need to be addressed legislatively. For starters, if someone invests their life savings in a US business, gets a temporary green card and then the business is unable to generate or sustain the jobs after two years, the green card can be revoked. And loans to US businesses are out as are investments where any kind of guaranteed return on investment is provided. A lot of other countries have more attractive programs.


Finally, I would have liked to have seen the White House also take on the serious internal bias against small business petitioners that we see at USCIS. Most entrepreneurs start small business and as long as USCIS officials think small businesses are presumed fraudulent, this is all lip service.

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  1. Jim's Avatar
    Disclosure: I am not as "educated" as the folks making the decisions, but I can confidently predict that this measure won't achieve much let, especially when it comes to the economy. Wouldn't want to take up space explaining why as we all know why...lip service...overall visa backlogs..nothing happening...nothing..for other skilled or should I say nothing for the majority of skilled immigration..its been 2 yrs since hte recession officially ended..and wonder y nothing has changed..and guesses for the next 5 yrs???
  2. Sid's Avatar
    "and wonder y nothing has changed"

    Jim, this chart might help -

    http://www.miseryindex.us/urbymonth.asp?StartYear=2007-11&EndYear=2011-06&submit1=Create+Report
  3. George Chell's Avatar
    Many in congress such as Rep Brooks of Alabama and the so-called experts such as Ronil Hira and George Borjas still stuck in the old mindset that one less immigrant means one more job for Americans and higher wages. They need to contact HSBC and CISCO.
  4. Nurse Waiting's Avatar
    "nothing happening...nothing..for other skilled or should I say nothing for the majority of skilled immigration..its been 2 yrs since hte recession officially ended..and wonder y nothing has changed.."

    Jim I think you are mistaken. Lot has changed since Obama took office. Life of skilled immigrants has taken a toll for worse. Approval from USCIS is a nightmare under this administration. Raids at workplacess are more common whereby scaring people in HR. Visa stamping at embassies are getting worse by the day. Now in name of background check it can take upto 6 months to get a visa stamped when you visit your home country. Port of entry is a gamble with hit or miss. So not only USCIS but embassies and port of entry are new issues to deal with. I am not sure how you can say that nothing has changed.
  5. Nurse Waiting's Avatar
    "this is all lip service"

    Just like promises to illegal immigrants where speeches say one thing and action (deportation and harassment at all time high) speak something else.

    Speak something to satisfy donors in silicon valley and while actions will focus on harassing workers.
  6. abcd's Avatar
    2 types of skilled immigrants waiting in line:
    1. those who wait n wait n wait and believe in the word "HOPE", and continue living life..how we all know..
    2. those who can see thru the lies and move on...
    legals need to decide which category they fall in!!!
  7. Nurse Waiting's Avatar
    Greg,

    What does this new initiative mean for foreigners? Do we have to have business up and running before filing for NIW and h1b? Or do we have to have a business plan in place?
  8. gg 's Avatar
    Now that its very likely that Obama will not win the 2012 elections unless he can miraculously turn around things in the next 12 months, he should seriously consider fulfilling his promise for immigration reform.


    http://www.realclearpolitics.com/epolls/2012/president/president_obama_vs_republican_candidates.html
  9. gg 's Avatar
    david vitter's prosecutorial discretion hypocracy

    lofgren nails david vitter .... 56:00 .... prosecutorial discretion hypocracy .... mentions dc madam sex scandal involving david vitter ....


    http://judiciary.edgeboss.net/wmedia/judiciary/immigration/immi07262011.wvx
  10. George Chell's Avatar
    Sickest housing market in the sickest state in America...Tucson, AZ

    http://finance.yahoo.com/real-estate/article/113245/americas-sickest-housing-markets-247wallst

    Yes, as Jack says you can enforce the laws, even stupid laws in the books, but you have to live with economic consequences. In the battle between economics and stupid laws, economics always wins out!

  11. gg's Avatar
    Frustrated Hispanics Want Immigration Reform, Marco Rubio in 2012

    http://www.christianpost.com/news/hispanics-frustrated-over-broken-promises-on-immigration-reform-53361/

  12. George Chell's Avatar
    Marco Rubio is not very Hispanic friendly...so these guys must be deluded!
  13. Sid's Avatar
    From the article posted by gg -

    "Both Democrats and Republicans receive an "F" grade from Hispanics going into the election, said Rodriguez. So where do they go?

    Rodriguez said there is still hope for Republicans.

    "In the words of Reagan in 1986, 'The Hispanic-American community is a natural, traditionalist, conservative community.'"

    The Hispanic-American community is 95 percent Christian - either Catholic or evangelical - and is very concerned about the attacks against religious liberties, abortion and traditional marriage, Rodriguez noted.

    Although Rodriguez views Hispanics as "natural allies" with the Republican Party, he asserts the RNC has not engaged Hispanics on immigration and other issues directly affecting their community."

    This is exactly the reason why I think Democrats did the right thing by not pushing for CIR unilaterally during Obama's first 2 years. They would have alienated many in their base who are opposed to legalization and in the next election Hispanics would have turned around and voted for Republicans based on their position on abortion, gay marriage, etc. once they've achieved their goal of legalization.
  14. George Chell's Avatar
    "They would have alienated many in their base who are opposed to legalization and in the next election Hispanics would have turned around and voted for Republicans based on their position on abortion, gay marriage, etc. once they've achieved their goal of legalization."

    Dont know how many in the Obama base is opposed to legalizations. Working class whites will generally vote their skin color over their economic interests...there was a book on this issue a few years ago. Dont know why the Dems (daily Kos and others) still sympathize with working class whites after they screw themselves voting for the GOP based on the latter's racist appeals. That is what working class white do...they vote for Bush in WV and then come back crying toe the Dems when a mine explosion leads to deaths of their loved ones. 35% of the protesters against Scott Walker at the WI capitol voted for him, something no one wants to highlight...it should be you make the bed you lie on it and recalls should not be allowed! They get back their majority and forget about it and go back and vote for Scott Walker again?

    On the second issue I totally agree. The Hispanics will get what they want, forget that they were treated like crap by sun belt states and go back and vote for them based on so called family values. They go back and lie in the bed with white skin worshipping pagans and forget everything...may not happen this time around with or without legalization...as long as racists such as Deal and Pearce keep the pressure and the anti-Hispanic hysteria continues to be highlighted in the media and with an icing on the cake...anti-Asian hysteria like they have in Australia...they used to slander and slur white male-Asian female couples...this has changed...now they beat up Indian students!
  15. gg's Avatar
    Roubini Sees 'More Than 50%' Chance of U.S. Recession: Video

    http://www.bloomberg.com/news/2011-08-05/roubini-sees-more-than-50-chance-of-u-s-recession-video.html

  16. George Chell's Avatar
    Roubini is a loose cannon. If today's payroll numbers hold up, there will be no recession. However, will these white sisters hold up muster when it comes to E-verify?

    http://news.yahoo.com/ky-sisters-sue-social-security-numbers-195010316.html
  17. Nurse Waiting's Avatar
    "Roubini Sees 'More Than 50%' Chance of U.S. Recession"

    Recession is when your neighbor loses his job, depression is when you lose yours. Recovery will be when bad leaders lose theirs!
  18. gg's Avatar
    Homeland Security cancels immigration agreements with states

    http://www.latimes.com/media/acrobat/2011-08/158828360-05134319.pdf
  19. gg's Avatar
    "Recession is when your neighbor loses his job, depression is when you lose yours. Recovery will be when bad leaders lose theirs!"

    So what is double dip ?
  20. gg's Avatar
    United States of America 'AAA/A-1+' Ratings Placed On Credi****ch Negative On Rising Risk Of Policy Stalemate

    http://www.standardandpoors.com/ratings/articles/en/us/?assetID=1245315237257
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