Startup’s & Businesses

Startup Visa Announced – New Updates

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President Obama announced new regulations today aimed at helping startup founders have a new legal pathway to living in the US.

SophiAlcorn
Sophie Alcorn Alcorn Immigration Law

Under this new proposal, investors, researchers and entrepreneurs who will establish a startup could qualify.

The founder would be required to show either that they have been awarded substantial U.S. investor financing or “otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research.” To receive the status, the founder must demonstrate factors such as investment and job-creation to receive temporary parole.

The legal mechanism behind this proposed rule would be the “public-benefit” provision parole regulation. The purpose is to “encourage entrepreneurs to create and develop start-up entities in the United States with high growth potential to create jobs for U.S. workers and benefit the U.S. economy.” This rule will help attract entrepreneurs to the U.S. and increase U.S. competitiveness.

In terms of a founder’s long-term immigration prospects, a track record from this “Startup Visa” could lead to “meeting eligibility requirements for existing nonimmigrant or immigrant classifications.”

The public is invited to learn more about the startup visa at a free event:


Title: Significant Public Benefit Parole for Entrepreneurs

Abstract:
The Department of Homeland Security (DHS) is proposing to establish a program that would allow for consideration of parole into the United States, on a case-by-case basis, of certain inventors, researchers, and entrepreneurs who will establish a U.S. start-up entity, and who have been awarded substantial U.S. investor financing or otherwise hold the promise of innovation and job creation through the development of new technologies or the pursuit of cutting edge research. Based on investment, job-creation, and other factors, the entrepreneur may be eligible for temporary parole.

Agency: Department of Homeland Security(DHS) Priority: Other Significant
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Proposed Rule Stage
Major: Undetermined Unfunded Mandates: No
CFR Citation: 8 CFR 212.5
Legal Authority: 8 U.S.C. 1182(d)(5)(A)
Legal Deadline: None

Statement of Need:
The Immigration and Nationality Act (INA) authorizes the Secretary, in the exercise of discretion, to parole arriving aliens into the United States on a case-by-case basis for urgent humanitarian reasons or significant public benefit. INA section 212(d)(5), 8 U.S.C. 1182(d)(5). No existing regulation explains how DHS determines what provides a significant public benefit to the U.S. economy. This regulation clarifies this standard with respect to entrepreneur parolees.

This regulation focuses specifically on the significant economic public benefit provided by foreign entrepreneurs because of the particular benefit they bring to the U.S. economy. However, the full potential of foreign entrepreneurs to benefit the U.S. economy is limited by the fact that many foreign entrepreneurs do not qualify under existing nonimmigrant and immigrant classifications. Given the technical nature of entrepreneurship, and the limited guidance to date on what constitutes a significant public benefit, DHS believes that it is necessary to establish the conditions of such an economically-based significant public benefit parole by regulation. Combined with a unique application process, the goal is to ensure that the high standard set by the statute authorizing significant public benefit parole is uniformly met across adjudications.

In this rule, DHS is proposing to establish the conditions for significant public benefit parole with respect to certain entrepreneurs and start-up founders backed by U.S. investors or grants. DHS believes that this proposal, once implemented, would encourage entrepreneurs to create and develop start-up entities in the United States with high growth potential to create jobs for U.S. workers and benefit the U.S. economy. U.S. competitiveness would increase by attracting more entrepreneurs to the United States. This proposal provides a fair, transparent, and predictable framework by which DHS will exercise its discretion to adjudicate, on a case-by-case basis, such parole requests under the existing statutory authority at INA section 212(d)(5), 8 U.S.C. 1182(d)(5).

Lastly, this proposed rule provides a pathway, based on authority currently provided to the Secretary, for entrepreneurs to develop businesses in the United States, create jobs for U.S. workers, and, at the same time, establish a track record of experience and/or accomplishments. Such a track record may lead to meeting eligibility requirements for existing nonimmigrant or immigrant classifications.

Summary of the Legal Basis:
The Secretary’s authority for this proposed regulatory amendment can be found in the Homeland Security Act of 2002, Public Law 107-296, section 102, 116 Stat. 2135, 6 U.S.C. 112, and INA section 103, 8 U.S.C. 1103, which give the Secretary the authority to administer and enforce the immigration and nationality laws, as well as INA section 212(d)(5), 8 U.S.C. 1182(d)(5), which refers to the Secretary’s discretionary authority to grant parole and provides DHS with regulatory authority to establish terms and conditions for parole once authorized.

Alternatives:
Anticipated Costs and Benefits:
DHS estimates the costs of the rule are directly linked to the application fee and opportunity costs associated with requesting significant public benefit parole. DHS does not estimate there will be any negative impacts to the U.S. economy as a result of this rule. Economic benefits can be expected from this rule, because some number of new ventures and research endeavors will be conducted in the United States that otherwise would not. It is reasonable to assume that investment and research spending on new firms associated with this proposed rule will directly and indirectly benefit the U.S. economy and job creation. In addition, innovation and research and development spending are likely to generate new patents and new technologies, further enhancing innovation. Some portion of the immigrant entrepreneurs likely to be attracted to this parole program may develop high impact firms that can be expected to contribute disproportionately to job creation.

Risks:
Timetable:
Action Date FR Cite
NPRM 12/00/2015
Regulatory Flexibility Analysis Required: No Government Levels Affected: None
Federalism: No
Included in the Regulatory Plan: Yes
International Impacts: This regulatory action will be likely to have international trade and investment effects, or otherwise be of international interest.
RIN Data Printed in the FR: No
Agency Contact:
Kevin J. Cummings
Chief, Business and Foreign Workers Division
Department of Homeland Security
U.S. Citizenship and Immigration Services
Office of Policy and Strategy, 20 Massachusetts Avenue, NW.,
Washington, DC 20529-2140
Phone:202 272-8412202 272-8412
Fax:202 272-1480
Email: kevin.j.cummings@uscis.dhs.gov

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What HR Legal needs to know about – Intermittent Employees and I-9 Issues

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Law Office of Sweta Khandelwal
Law Office of Sweta Khandelwal

Occasionally, a company requires an intermittent employee to complete a certain project or goal.  A foreign national on an H-1B or L-1 visa may be employed in the US for a short period of time. Regardless of how long a particular employee stays or how often they come in and out of the United States, an employee in the United States must comply with I-9 requirements, , even if they are paid by a foreign employer.

Attend HR Immigration Compliance Workshop by Sweta Khandelwal . Click here for details

An employer must ensure, at a minimum, that Section 2 of Form I-9 is completed within three days of the employee commencing employment.  Sometimes an overseas employee may enter the US for the limited duration of a project and leave US without completing the I-9 Form. In such a situation, the employee must complete the Form I-9 upon their next arrival in the United States.  However, this does not always cure the violation; the employer may find themselves in trouble with E-Verify standards.

A common misconception by employers is that rules/laws regarding worksite compliance do not apply to foreign employees. This is not true. Although for an employee  on a foreign payroll the missing Form I-9 may not come up in an I-9 audit, the Immigration and Customs Enforcement may find it in their own audit; or if company tax records are scrutinized.

On a separate note, complying with the IRS tax requirements for both the employer and employee can be a very complicated process, requiring an analysis of the employee’s primary residence, the days spent in the United States, current income tax guidelines, the employee’s income, and other factors.  It is imperative to check with a CPA.

Having a foreign employee work in the US requires the assistance of an expert immigration attorney, irrespective of the duration of employment in the US. Contact our office if you need assistance with hiring a foreign employee, I-9 compliance, or any other immigration issues.