New Immigration Policies and Options for Entrepreneurs

A bill in the U.S. House of Representatives, “The America Competes Act 2022” proposes incentives for nonimmigrant entrepreneurs to start-up businesses in the United States to make the United States more competitive by encouraging some of the best and the brightest to bring their entrepreneurial talent into the country. The bill proposes a “W” visa that would cover an alien classified as a nonimmigrant entrepreneur with an ownership interest in a start-up business, an alien who is or will be an essential employee of the start-up, and the spouse and children accompanying the entrepreneur and/or essential employee.

To achieve this status, the alien must possess an ownership interest in the start-up of not less than 10%, play a central and active role in the management or operations of the start-up, and possess the knowledge, skills, or experience to substantially assist the start-up with the growth and success of the business. The previous 18 months prior to the alien filing a petition for W status the start-up business must have received at least $250,000 in qualifying investments from one or more qualified investors, and at least $100,000 in qualifying government awards or grants.

The status granted under a W visa is valid for an initial period of three years, with the option for an extension. The nonimmigrant can apply for an additional three-year period if the alien possesses an ownership interest of not less than 5% in the start-up that formed the basis of the initial petition and will continue to play a central and active role in the management or operations of the start-up. In addition, the start-up must have received at least $500,000 in additional qualifying investments from one or more qualified investors, qualifying government awards or grants, or a combination of such funding, created at least five jobs, and have generated not less than $500,000 in annual revenue and averaged 20% in annual revenue growth.

After the first six years on a W nonimmigrant visa, the alien can extend the W visa in two one-year increments for a total of eight years. It appears that USCIS recognizes building a business takes some time and has allotted eight years for this process. Once a nonimmigrant entrepreneur has achieved at least $1,000,000 in revenue for two consecutive years a nonimmigrant holding a W visa can then petition for lawful permanent residence.

For the nonimmigrant entrepreneur in W status to adjust status to obtain lawful permanent residence the nonimmigrant entrepreneur in W status must be present in the United States and have maintained status as a nonimmigrant. The nonimmigrant entrepreneur must have maintained an ownership interest in the start-up business since its founding, and the nonimmigrant entrepreneur must play an active and central role in the operations of the start-up business. The start-up business must have created at least ten qualified jobs, received not less than a total of $1,250,000 in qualifying investments, qualifying government grants or awards, or a combination of such funding, and have generated no less than $1,000,000 in annual revenue in the two years preceding the filing of the petition.

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