Because 30 Years Is a Lifetime in the Tech Sector
By Lorraine D’Alessio
A billion-dollar Chinese tech company has approached my law firm about immigrating to the U.S. to develop a revolutionary idea that may transform our approach to the human experience in the 21st century.
International entrepreneurs still believe that the U.S. is the ideal place for scaling, developing, and growing their ideas, despite the current administration’s efforts in curbing legal immigration and an increasingly polarized national immigration debate.
The U.S. president’s goals of limiting legal immigration has created a ripple effect across industries, with whole fields experiencing job shortages, international (and even American) professionals considering new, friendlier destinations to take their work, and companies stuck in limbo while weighing the costs and benefits of hiring international workers.
The U.S. currently offers immigration options that entrepreneurs use to come stateside, notably the treaty investor visa, or the E-2, and the extraordinary abilities visa, also known as the O-1, amongst a few others.
This first allows foreign entrepreneurs from certain countries to live and work in the U.S. for a two-year period, allowing these innovators to develop their ideas. There is a catch: you must invest a minimum of $150,000 in a U.S. business or in one that you have founded in the U.S., and you must be from a country that currently maintains a trade treaty with the U.S.
That is an expensive hurdle to clear for a rising entrepreneur from China, India, Brazil or any other country not designated as a U.S. treaty partner.
As a result, many international entrepreneurs pursue the O-1 visa, an option meant for professionals with extraordinary abilities within the arts, entertainment, sciences, education, business and athletics. The O-1 visa allows you to come to the U.S. for periods of up to three years while you continue to work and live in the country.
Because entrepreneurial visa requirements are often hard to satisfy for young innovators, professionals are forced to pursue other alternatives, many of which take years to qualify for. Those years may be the difference between founding a future billion-dollar company that creates thousands of American jobs and an international rival taking the idea and developing it elsewhere in the world.
Despite this, small business ownership is trending towards a 20-year high. A majority of new jobs are created through entrepreneurs and their work. These innovators and their small businesses disrupt the international market, which in turn fuels job creation and supports competition across industries. It only takes a great idea to transform that small business into a monolith!
The Obama administration attempted to address this oversight with the International Entrepreneur Rule, which sought to allow foreign entrepreneurs to live and develop their work in the U.S. on a temporary basis. However, the Department of Homeland Security under the Trump administration quickly rescinded the rule before international entrepreneurs could capitalize on the opportunity. The rule was generally regarded as flawed, but it was still a step in the right direction.
The fact that it was rescinded without any proposed alternative speaks to the direness of this situation and further shows how policymakers need to reconsider their goals in the scope of the current immigration climate.
Another barometer to gauge just how little U.S. policymakers are doing on this issue is by looking at other countries and their respective efforts in attracting these innovators:
- The French Tech Visa has interested countless entrepreneurs by promising a “simplified fast track” process for three categories of tech talent: startup founders, employees and investors.
- Finland’s Startup Permit has enticed a myriad of international innovators to the country by promising a faster turnaround for applicants with specialized foreign talent, rather than a long, drawn-out process that can take up to a year or more in the U.S.
These European countries are paying attention to the trends and are facilitating an intellectual gold rush that is creating jobs and improving lives in these countries in a number of ways.
As one of Southern California’s leading business-immigration law groups, my firm has witnessed several international clients take their work to these greener pastures. Here are a couple of recent examples:
- An Italian manufacturing giant pulled out of plans to establish business stateside after hitting multiple barriers in the visa process.
- A world-famous chef, disillusioned with the time and resources it took to earn his visa, gave up on founding a chain of restaurants in the U.S. and instead took his business to France, where he has grown beyond his own expectations.
There is not one industry in the U.S. that is safe from this growing trend and not a corner of American life that is not affected by this immense and ongoing loss of opportunity.
If American policymakers do not act soon, the country runs the risk of missing out on the current entrepreneurial wave of innovation driving the global marketplace. We also run the risk of punting the next immigrant-founded tech giants, such as Google, Tesla, Yahoo! and Intel to other countries, along with the countless potential jobs these companies create.
The solution does not require U.S. legislators to overhaul the system in its entirety, rather they need to improve policy that is already set in place. Throwing the baby out with the bathwater will not make the U.S. immigration system a cleaner process!
- There is no reason the O-1 visa cannot encompass entrepreneurship, and since the visa was created almost 30 years ago (a lifetime in the tech sector), it is long overdue for an update to better address current job trends and reward those potential job creators.
- A new visa classification specifically geared towards the rising entrepreneurs fueling job creation could make an incredible difference in the development of these technologies and ideas, and in facilitating economic growth while creating a new golden era of tech boom.
The international entrepreneurs we represent think big and aim high. They scale reasonably and approach their dreams with carefully plotted steps. There is nothing more American than a full-throated dedication to make dreams a reality. Their originality and commitment are our gain, in so many ways!
The Immigration Act of 1990 not only established the O-1 visa and numerous other visa options, but was also introduced by Democrat Ted Kennedy, and signed into law by Republican President George H.W. Bush. Policymakers need to find inspiration in this bipartisanship and embrace immigration solutions that set the country up for success in the years and decades to come.
President Trump recently announced plans to prioritize highly-skilled immigrants in an effort to shift the U.S. immigration process to a more merit-based one. While moving away from a family-based system would rightfully earn significant blowback on both sides of the political divide, this announcement at least shows that the White House is starting to consider ways that the immigration system can better support highly-skilled international professionals.
It’s time to invest in our future by revising and updating the O-1 visa to reflect the tech driven world we live in today.
CEO of D’Alessio Law Group, Lorraine D’Alessio was the recipient of the 2018 Enterprising Woman Award. A former Ford model turned legal powerhouse, Lorraine is a multi-award-winning, immigration expert. She is the author of “Going Global: Investing in U.S. Immigration,” a highly anticipated guide to U.S. immigration expected to be published later this year.
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