Building Startups, Not Walls: High-Skilled Immigration Policy Changes in the US
COMMENTARY
It’s an interesting time to be an American. For us immigration lawyers, the tumultuous political climate adds further complexity.
From the nonstop coverage of the southern border, you might think that helping new arrivals fills our days. However, as immigration lawyers who work with scientists, startup founders, international students and researchers, we see a very different side to the immigration system.
You may also believe that immigration laws are changing rapidly. Not so. Congress has not reformed our legal immigration system since 1990. While the law hasn’t changed, immigration policy has, and often seesaws from one administration to the next.
Immigration law and policy will be key issues in the presidential campaign this fall.
Controversial Trump administration policies like the Muslim travel ban and family separation have received widespread attention. However, high-skilled and business immigration also suffered during his tenure, with sweeping policy changes upending the system. To quote Stuart Anderson in Forbes, “Although Donald Trump said he favored ‘merit-based’ immigration, his policy team never seemed to find high-skilled foreign nationals it wanted to let work in the United States.”
In contrast, the Biden-Harris administration has put forth a sustained effort to attract and retain global talent, especially those in the fields of science, technology, engineering and mathematics. This administration has coupled its rhetoric — “America’s greatest strength is our ability to attract global talent to strengthen our economy and technological competitiveness” — with several policy updates that have transformed business immigration.
One example is the recent revival of the International Entrepreneur Parole program. Unable to persuade Congress to enact a startup visa for immigrant founders, the Obama administration created IEP as an administrative alternative. This program gives special “parole” status to promising startup founders who raise significant funding from U.S.-based sources and can show that their business has a high potential for growth and job creation.
Unfortunately, the IEP program was created in the last month of the Obama administration and was effectively suspended during the Trump administration.
In May 2021, immigration lawyers like us rejoiced when the Biden-Harris administration announced that it would revive the IEP program. Despite good intentions, the uncertainty surrounding processing times and procedural hurdles has resulted in IEP being largely unused until now. But with recent updates announcing the elimination of current IEP application backlogs and a commitment to deciding new applications as quickly as possible, the program may finally live up to its potential.
To date, only 94 IEP applications have been filed, with only 26 approvals. One of those approvals was filed by us (Fiona McEntee) and expedited and decided promptly. The founder, Mukul Patnaik, an incredible AI entrepreneur and founder of Portal, is already hiring and maximizing the potential of his startup.
We are confident that we may soon see many more IEP cases filed and approved. That should bring us closer to the estimated hundreds of thousands of jobs these immigrant startup founders could create.
Our nation faces major challenges, like an aging population and a geopolitical rivalry with China and its larger talent pool. Thus, it’s more important than ever to maintain a competitive edge. This is especially true in STEM and emerging fields like AI and quantum computing, areas in which immigrants play an “outsized role.”
After many years of advocacy, IEP is finally a viable option for immigrant startup founders. It’s been a rollercoaster getting to this point.
Now that we’re here, our country cannot afford to go back.
Fiona McEntee is the managing attorney of McEntee Law Group. She can be reached on LinkedIn.
Stephen Yale-Loehr is an attorney of counsel at Miller Mayer, LLP. He also teaches immigration law at Cornell Law School. He can be reached by email.
Dan Berger is joining Green & Spiegel as a partner and is an academic fellow at Cornell Law School. He can be reached on LinkedIn.
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