Entrepreneur in Residence – Big Step in the Right Direction

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On Wednesday, February 22, 2012, USCIS hosted an “Entrepreneur in Residence” (“EIR”) conference at the NASA Research Park in Moffett Field, California.  The objective of the conference was to gather ideas on how the U.S. immigration process can be streamlined to facilitate and promote the hiring and retention of talented individuals who will remain in the U.S. to start companies and create jobs.  Because current law may need to be changed to achieve the full purpose of the EIR initiatives, USCIS seeks ideas from the community on what can be done now and in the near future to promote this initiative to the extent possible under current law, assuming that Congress will not be enacting new immigration law in the foreseeable future. The highest levels of USCIS were present at the conference, including Director Mayorkas, who stayed through the entire day of the conference.

The EIR conference started with a plenary session in which Director Mayorkas delivered the opening remarks, and chaired a discussion comprised of distinguished immigrants in the U.S. who have established themselves as leaders in their fields.  The opening session was followed by a beautiful naturalization ceremony where approximately 30 people were naturalized to be U.S. citizens.  The “American By Choice” awards were also presented to naturalized citizens who have made significant contributions to the U.S.  The working lunch contained a nice speech by Representative Zoe Lofgren who is a strong supporter of business-friendly immigration law. The afternoon sessions consisted of breakout sessions, each led by a senior USCIS representative.  Throughout the day, USCIS representatives listened and gathered ideas.  They were not defensive about current policies and appeared to listen and absorb the ideas presented.

About 100 people attended the EIR Conference, including myself. The participants included business owners, entrepreneurs, nonimmigrants in the U.S. who have recently graduated from U.S. universities and started businesses, industry experts, and of course, immigration lawyers, such as myself.

To be honest, I was not sure what to expect from the conference. I was not sure how exactly I could contribute, or how USCIS planned to use the ideas that it would receive. I just felt that I needed to participate to understand where USCIS was going with it’s attempt to reach out.  My cynical side thought that this might be just another conference where good ideas were discussed, but nothing would happen afterwards.  My hopeful side wanted to believe that USCIS would take our input seriously and make immediate changes to foster policies and practices that will truly encourage entrepreneurs from other countries to start businesses in the U.S.

I was pleased to note that USCIS seems to be serious about its EIR initiative. Representatives of the agency were attentive and took copious notes.  USCIS did a few very smart things.  It invited recent graduates who were going through the “visa” process to obtain the ability to work in the U.S.  They shared their personal experiences, challenges, and frustrations they faced to get the right visa status to start a business in the U.S.   They shared their concerns and fear about the visa process and how it is demoralizing to those trying to start  businesses and create jobs in theU.S.

There were lengthy discussions how the business models of startup companies simply do not fit the current mindset of USCIS adjudicators.  For example, a Silicon Valley startup tech company might not have traditional office space or an organization chart, items that USCIS insists on seeing.  Extensive paperwork and detailed organizational charts are unrealistic items for a startup or small company.  Further, industry experts who were present at the EIR conference confirmed that what USCIS looks for is not compatible with how businesses are started nowadays.  While it was acknowledged that USCIS has a difficult task to distinguish a new startup from a fraudulent company, it is critical for USCIS to give full consideration of all evidence submitted by startup companies, instead what appears to be the practice of blindly following a checklist.  There was discussion of the high frustration level companies have with RFEs (Request for Evidence) and illogical denials of petitions. USCIS seemed receptive and hopefully understood that additional training of staff is needed.

I came out of the conference feeling that USCIS, under the leadership of Director Mayorkas, truly wants to embrace the business community to achieve changes that can encourage foreign entrepreneurs.  I felt the sincerity of their responses to the discussion and perhaps a genuine desire to learn what’s happening in the real world.  I applaud USCIS’s effort and leadership in this regards.  The agency’s openness to suggestions and dialogue was truly remarkable and refreshing.

However, I have some concerns. First, I wonder how USCIS leadership can extend the attitude we saw at the conference to the product lines and adjudication staff levels.  After all, it seems that is where the source of the problem. If the business community continues to receive RFEs that are poorly thought-out, unnecessarily lengthy, and sometimes mean-spirited, the EIR initiatives will fail.  We do not want them to fail.

I am also concerned how quickly USCIS can effect the changes throughout its massive organization, and how permanent the changes will be.  The business community needs relief asap, but change is slow in the government.  The lack of progress will be frustrating.  Moreover, how long will Director Mayorkas be in place?  If President Obama is not  re-elected in November 2012, Director Mayorkas will likely be replaced.  In a new Administration will the USCIS Director be as open-minded as Director Mayorkas? While I have my issues with the immigration policies and stands of this Administration, I have even bigger concerns with the harsh rhetoric that the current Republican presidential candidates are expressing in the area of immigration.  Will they roll back any progress that Director Mayorkas has made and will make?  We remember the days when legacy INS was very much a “closed” organization which shunned public engagement and exchanges of ideas.  Those were dark times.  We do not want them back.

My takeaway?  Director Mayorkas is doing the right thing with the EIR conference and initiative, and he deserves our full support.  Let’s engage with him and give him examples where sound USCIS adjudication has helped, as well as cases where USCIS bureaucracy has squandered innovative business plans.  We should take time to comment on his efforts and provide him with honest and constructive feedback.  We do not need to tell him what we think he wants to hear, and I do not believe he wants that from us either.  However, I do believe that he deserves our respect and we should support him.  He is doing the best he can within the purview of his office.  We should reciprocate his effort with our best as well.  The EIR initiative is clearly a step in the right direction and a giant switch in the swing of the pendulum from the culture of “No” of legacy INS. 

By Jared Leung, to contact please send a message to jleung@fclaw.com or call 602-916-5315.

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