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.
Greg Siskind is a partner in Siskind Susser's Memphis, Tennessee, office. After graduating magna cum laude from Vanderbilt University, he received his Juris Doctorate from the University of Chicago. Mr. Siskind is a member of AILA, a board member of the Hebrew Immigrant Aid Society, and a member of the ABA, where he serves on the LPM Publishing Board as Marketing Vice Chairman. He is the author of several books, including the J Visa Guidebook and The Lawyer's Guide to Marketing on the Internet. Mr. Siskind practices all areas of immigration law, specializing in immigration matters of the health care and technology industries. He can be reached by email at email@example.com.