Department of State Publication 9514
CA/VO: August 8, 2011

10.  USCIS Rolls Out Initiatives Designed to Promote Startup Businesses

As part of efforts to promote job creation through the immigration process, US Citizenship and Immigration Services has announced a series of policy initiatives and changes designed to make existing immigration programs more attractive to entrepreneurs and open up other programs perceived to be largely unavailable to self-employed individuals.

First, USCIS noted that the EB-2 national interest waiver category is available to entrepreneurs and that creating jobs for workers in the US is a factor that can demonstrate national interest benefits. USCIS did not, however, provide guidance on how many jobs would be enough to show this.

The agency also backtracked on a policy memorandum issued last year - commonly referred to as the Neufeld Memo – that noted that self-employed individuals could generally not qualify for H-1B visas. USCIS has issued an updated Frequently Asked Questions document that now makes clear that individuals who own their own businesses – even at a 100% level – can potentially qualify for an H-1B. USCIS still expects their to be an employer-employee relationship and that some kind of control over the entrepreneur would still be required. According to the agency, that might be able to be shown if a company has an independent board of directors that controls the employment of the sole owner of a company.

USCIS has announced the expansion of the premium processing to I-140s for EB-1 multinational executive and manager category as well as the EB-5 I-126 application  for investors. USCIS will also make available direct contact with EB-5 examiners and also the opportunity to have an interview with an expert panel to address issues and concerns in EB-5 processing.  The EB-5 changes will begin to be introduced within 30 days.