Congress’ Comprehensive Immigration Bill Contains Startup Visa Provisions

The recently released draft of Congress’ “comprehensive” immigration reform bill contains several categories of what can best be termed as “startup visas” for non-US citizens looking to start businesses here in the US. There are two primary types of these startup visas: non-immigrant visas and immigrant visas, and of the immigrant visa variety, there are two further subtypes with different qualifications.

In order to qualify for any type or subtype of these startup visas, a person must be a “qualified entrepreneur”, which means they:

– have “significant ownership” in a US business (the bill does not clarify what constitutes “significant ownership” except to say that it need not be majority ownership”)
– are employed in a senior executive position
– must submit a business plan to Customs and Immigration Services
– have a substantial role in the founding or early stage growth of the business

Many of the qualifications of the visas require the visa holder to receive “qualified investment”, which can include:

– an equity purchase
– a secured loan
– a convertible note
– a public securities offering
– a R&D award from a government entity of the United States or any of its states or municipalities
– any other investment determined appropriate by the Secretary of Homeland Security
– and is not from the visa holder, or his or her parents, spouse, children, or any entity in which the visa holder has significant ownership

Under the non-immigrant visa, there is an initial admission period of three years, which can be renewed for an additional three years provided: 1) in the prior three year period the visa holder’s business created at least 3 full-time jobs and received at least $250,000 in qualified investment; OR 2) in the prior three year period created at least three full-time jobs and in the prior 2 year period generated at least $200,000 annual revenue. A visa holder can also obtain up to two one year extensions waiving the conditions for renewal provided that the business has made “substantial progress” and renewal is “economically beneficial” to the US.

The immigrant visa has two types. Under the first, the visa holder must have maintained non-immigrant status in the US for at least two years, and during the three year period prior to application for the visa the person: 1) has had significant ownership in a US business that has created at least 5 full-time jobs and has received at least $500,000 in qualified investment; OR 2) has significant ownership in a US business that has created at least 5 full-time jobs and in the preceding 2 year prior has generated at least $750,000 annual revenue, and no more than two other persons have received startup visas of the non-immigrant type based on their ownership in the business.

The second immigrant startup visas is the commonly talked-about “STEM visa”. To qualify for this visa, a person must have maintained non-immigrant status in the US for at least three years prior to application, hold an advanced degree in science, technology, engineering or math, and during the three year period prior to application: 1) have significant ownership in a US business that has created at least 4 full-time jobs and received qualified investment of at least $500,000; OR 2) have significant ownership in a US business that has created at least three full-time jobs and in the prior 2 year period generated at least $500,000 annual revenue.

I’ve previously stated that the visa requirements don’t really work for an entrepreneur utilizing the bootstrapping method, although I do certainly appreciate the need to quantifiably measure the progress and proper usage of the visa. Furthermore, under the non-immigrant visa it’s possible to get up to five years in the US to work on the business without having to show any of the numerical metrics for renewal, but it is unclear whether the non-immigrant visa will be a “dual-intent” visa, or whether non-immigrant visa holders are expected to later apply for the immigrant visa.

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