Creating New Options – The Startup Visa for Qualified Alien Entrepreneurs

Thousands of uniquely talented foreign students enroll in colleges and universities in the United States on a yearly basis. Some find sponsoring employment and are able to petition for a H-1B nonimmigrant visa; however, there remains a large majority that are left with no available options to remain in this country once their education is completed.
It would seem counterintuitive to educate the foreign-born and then send them home. Furthermore, U.S. companies are finding it increasingly difficult to procure visas to transfer existing foreign employees to the U.S. to continue work on products, services and projects. Current immigration policies are not working well for U.S. businesses.

Still in Committee
In 2012, members of the U.S. Senate introduced the Startup Act 2.0 to jump-start economic recovery through the formation and growth of new businesses and for other purposes. Section 4 of the Bill specifically authorizes the Secretary of Homeland Security to issue conditional immigrant visas to up to 75,000 qualified alien entrepreneurs.
A “qualified alien entrepreneur” is defined in the Bill as an alien who is lawfully present in the United States, holds a specific type of nonimmigrant visa or has completed or will complete a graduate level degree in a STEM (science, technology, engineering or math) field from an institution of higher education.
During the first year after obtaining the Startup Visa the alien must (1) register at least one new business entity in a state; (2) employ at least two full-time employees who are not relatives of the alien in the U.S. business; and (3) invest, or raise capital investment of, not less than $100,000 in the U.S. business.
During a subsequent three-year period beginning on the last day of the initial one-year period, the alien must employ in the business an average of at least five full-time employees who are not relatives of the alien.
If, during the four-year period beginning on the date that the visa is granted, it is determined that the alien is no longer a qualified alien entrepreneur, the visa will be revoked and the individual must depart the U.S.
At present, the Startup Act 2.0 has not been enacted and remains in the Senate Finance Committee. The committee chair, Montana Sen. Max Baucus (D), will determine whether a bill will move past the committee stage.

Pros and Cons
As with any proposed legislation, there are proponents and opponents of the Bill. Critics argue that implementation of the Startup Visa will displace equally qualified American engineers, programmers, scientists, technicians and others. They argue that the Startup Act would serve only as a Band-aid to temporarily fix a severely broken immigration system and would rather wait for comprehensive immigration reform, something that President Obama has indicated that he would make a top priority in his second term as president.
Lastly, they believe that it would be challenging to monitor the alien recipients of the Startup Visa and that it would be difficult to root out fraud – those concocting a scheme just to procure the visa.
Startup Act 2.0 has strong support in Silicon Valley. Proponents believe that the United States is losing the battle for entrepreneurial talent; accordingly, policies need to be in place to turn it around, and this bill is the first step. Despite the significant support from companies in Silicon Valley, however, the Bill remains stagnant.

Canada Leads the Way
Canada will launch its own version of the Startup Visa for Immigrant Entrepreneurs on April 1, 2013. It, too, wants to attract the best and the brightest. One main difference between the U.S. Startup Visa and the Canadian Startup Visa is the fact that alien recipients of the Canadian Startup visa will receive immediate, not conditional, permanent resident status.
For hundreds of years, the United States has been able to attract the best and the brightest in the world for education and entrepreneurship.
These foreigners entered the United States with hopes of living the American dream – getting an education, starting a business, engaging in democracy, starting a family. Now, our Immigration policies close the door on these individuals. It remains to be determined whether Startup Act 2.0 is the answer.

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