Here’s another edition of “Ask Sophie™,” the advice column that answers immigration-related questions about working at technology companies.
“Your questions are vital to the spread of knowledge that allows people all over the world to rise above borders and pursue their dreams,” says Sophie Alcorn, a Silicon Valley immigration attorney. “Whether you’re in people ops, a founder or seeking a job in Silicon Valley, I would love to answer your questions in my next column.”
Both my co-founder and I have E-2 status. We need to find a quick visa option as a VC investment will dilute our equity, and we will no longer be eligible for the E-2. We are looking at International Entrepreneur Parole as an option since we would easily qualify based on the investment we’re expecting and it seems easier than an O-1A. How long does IEP take? How can we expedite?
So, how long will it take?
Based on the IEP cases we’ve filed since the Biden administration officially resurrected the program last May, U.S. Citizenship and Immigration Services (USCIS) is taking at least six to eight months to make a decision – so I’m educating entrepreneurs to allow a minimum of a year for the normal IEP process. Be aware that premium processing is currently not available for IEP cases. Available for other forms of visas, premium processing guarantees USCIS will make a decision—or issue a Request for Evidence (RFE)—within 15 days for an additional fee. The other main option to try to speed things up is through USCIS Expedite Request for severe financial loss to a company. Talk to your attorney about whether you might qualify.
I feel very strongly that issues such as the lack of premium processing should be changed. I’ve been working behind the scenes with other immigration attorneys and groups to make waves in the field of immigration – we are advocating for other improvements to streamline the IEP application process. I was proud to be a part of last year’s advocacy effort that pushed U.S. Customs and Border Protection (CBP) to grant IEP beneficiaries the full 30 months of initial stay in the United States. Previously, CBP officers would only grant a maximum 12-month stay to IEP recipients. We discovered that was due to a glitch in the agency’s automated system, which erroneously set the maximum stay at 12 months rather than 30 months.
Given your timing sensitivity, consider the O-1A extraordinary ability visa with an immigration attorney. Many of our founder clients qualify for the O-1A, which is the quickest option and premium processing is available.
Making IEP more efficient, effective
I recently wrote a letter on behalf of the Coalition for International Entrepreneurship to Secretary of Homeland Security Alejandro Mayorkas, who oversees U.S. Citizenship and Immigration Services (USCIS). The Coalition for Entrepreneurship consists of 36 organizations including the American Immigration Lawyers Association, Angel Capital Association, Center for American Entrepreneurship, Federation of American Scientists, National Venture Capital Association, and TechNet
The letter states that several problematic procedural issues make the IEP “volatile, uncertain, complex, and ambiguous” (or VUCA, a term I learned from my podcast sit-down with futurist Jamais Cascio just a few weeks before writing the letter) and “very difficult to actually use the program.” The coalition made recommendations for improving the effectiveness of the IEP program to ensure the United States remains the top destination for entrepreneurship, innovation, and job creation.
Improve processing times
We recommend that USCIS either establish premium processing for IEP applications or strive for a 14-day processing time as it currently does for the O extraordinary ability visa, the P entertainment visa, and other visas, even without premium processing. These visas also have a clear procedure for applicants to follow up with USCIS if processing times exceed the 15-day timeframe, and we encouraged USCIS to put a similar procedure in place for IEP cases.
The coalition also requested that USCIS establish more suitable IEP case processing systems and personnel. Currently, IEP applications are adjudicated by the EB-5 Immigrant Investor Program Office. (The EB-5 investor visa program lapsed on July 1, 2021.) Instead, the coalition suggests that USCIS consider having “officers who routinely adjudicate and are familiar with L-1 and E-2 cases as IEP applications are more similar to E-2 and L-1 petitions.”
Validating qualified investors
As you know, one of the criteria for qualifying for IEP is that a founder’s startup must have received at least $264,147 from qualified U.S. investors. (When the IEP program began, a startup must have received at least $250,000 from qualified U.S. investors. On Oct. 1, 2021, at the start of the new federal fiscal year, that amount and all other investment and revenue amounts associated with the IEP program were adjusted based on the Consumer Price Index.)
The coalition pointed out the need to expand the definition of a qualified U.S. investor, as well as streamline the vetting process for investors. The coalition advocates modifying the term “qualified investor” to include those with passive foreign limited partners. The coalition also pressed for USCIS to use the Validation Instrument for Business Enterprises (VIBE) program to streamline the qualification process for investors. VIBE is already used to validate information about companies that are sponsoring individuals for visas, such as the H-1B.
Engage with key stakeholders
Finally, the coalition pressed the Secretary of Homeland Security to “establish regular interactions with stakeholders in the academic, entrepreneur, legal, and investment communities to further refine the program.” The coalition specifically mentioned restarting the USCIS Entrepreneur in Residence Initiative, a program that tapped industry expertise to strengthen USCIS policies and practices that originally launched in 2011 when Mayorkas was USCIS Director.
I hope to share positive news on the IEP process and the creation of a W startup visa shortly. If your startup is in one of the 16 states I mentioned in this previous Ask Sophie™ column, write a letter to your Senator, telling him or her why creating a startup visa is vital to innovation and job creation in the U.S.
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The information provided in “Ask Sophie™” is general information and not legal advice. For more information on the limitations of “Ask Sophie™,” please view our full disclaimer. You can contact Sophie directly at Alcorn Immigration Law.
Sophie’s podcast, Immigration Law for Tech Startups, is available on all major platforms. If you’d like to be a guest, she’s accepting applications!