If Congress can work together, we may soon have the long sought-after startup visa and more!
This week Congresswoman Zoe Lofgren (CA-19), Chair of the House Subcommittee on Immigration and Citizenship, introduced H.R. 4681, the Let Immigrants Kickstart Employment (LIKE) Act.
As an immigration attorney who regularly works with and advises startups and immigrant entrepreneurs, I know how desperately the U.S. needs this legislation. Unlike many of our international peers such as Canada, Australia, the United Kingdom, Germany and Sweden, the current U.S. immigration laws do not provide a specific immigration option for startup founders – commonly known as a “startup visa”.
As it stands, immigrant startup founders are forced to navigate an antiquated system largely rooted in employer-sponsored visas. When assessing immigration options for startups, immigration attorneys regularly try to fit a “square peg into a round hole”. The existing visa options do not readily accommodate the startup entrepreneur for many reasons the least of which includes the fact that our current employment-based immigration laws were put in place over 30 years ago – well before we had the internet on our phones, and before social media and apps.
Recognizing the gross deficiency in the current system, and without action from Congress, the Obama administration attempted to address the problem by creating the International Entrepreneur Rule (IER) in 2017. Despite clear need and widespread support, the Trump administration tried to rescind the rule. Earlier this year, the Biden administration announced that it would be fully implementing IER which, while welcome, may not be a readily accessible option for many. IER is based on DHS’ limited parole authority – it is not a visa or status – applicants cannot change status to/from it in the U.S. They must leave to get a required boarding foil from the State Department (Canadians aside) and then re-enter the U.S. Given the logistics involved and the Department of State’s pandemic-related backlogs, the IER may just be an option in theory for the foreseeable future for the startup founder.
Congress has long been aware of the need for reform in this area. The House Subcommittee on Immigration and Citizenship recently held a hearing on the outdated immigration system. I, along with others, was honored to submit a statement to Congress highlighting the roadblocks faced by our would-be immigrant startup founders.
Congresswoman Lofgren has consistently championed immigration options for startups. By introducing the LIKE Act, she has recognized the clear need for a startup visa and has proposed a feasible solution. As she states “[s]tartup companies are fundamental to U.S. job creation. They are responsible for virtually all net new jobs created over the last couple of decades.”
The LIKE Act’s requirements are similar to those seen in IER but unlike IER it creates a new temporary W-1 visa for individuals who:
- Have at least 10% ownership interest in a start-up entity that has received $250,000 from qualified US investors or $100,000 from government awards or grants;
- Play a central and active role in the management or operations of the entity; and,
- Have the knowledge, skills, or experience to substantially assist the entity with its growth and success.
The initial approval period of the startup W-1 visa is 3 years. There is also the ability to apply for an additional 3 year extension, and two further 1 year extensions, if certain benchmarks such as job creation and revenue generation are met.
The LIKE Act creates a W-2 visa for essential employees of the start-up entity, with numerical limits per entity, and a W-3 visa for the spouses and children of W-1/W-2 nonimmigrants. W-3 spouses can apply for employment authorization and premium processing will be available for the W-1 and W-2 options.
The W visa is dual intent meaning that the nonimmigrant may intend on seeking lawful permanent residency in the United States. Further, the Act proposes an option for the W-1 founder to self-petition for a green card as an immigrant entrepreneur. Green cards under this option would not be subject to numerical limitations under INA sections 201, 202, and 203. To qualify for a green card, the entity must have created 10 full-time jobs and raised significant funds in excess of $1.25 million or have more than $1 million in annual revenue in the 2 years preceding the application.
I truly hope that both sides of the aisle can come together to support the LIKE Act. Despite the events of recent years, we know that immigration does not have to be a partisan issue. Creating a startup visa, that will encourage innovative immigrant entrepreneurs to come to, and remain in, the U.S. should not be divided down party lines. This makes economic sense for America and can help kick-start our economy at a time when we need it most.
You can also watch AILA Associate Director of Government Relations Diane Rish in this Quicktake video as she describes the provisions in the LIKE Act: https://youtu.be/rtfKzcL4USU