With great fanfare on August 2, 2011 Homeland Secretary Janet Napolitano announced a set of initiatives designed to fully utilize immigration laws to promote startup enterprises and spur job creation. Immediately following Secretary Napolitano’s statement that “the United States must continue to attract the best and brightest from around the world to invest their talents, skills and ideas to grow our economy and create American jobs,” USCIS Director Mayorkas confirmed that “USCIS is dedicated to ensuring that the potential of our immigration laws is fully realized, and the initiatives we announce today are an important step forward.” With due respect to our Homeland Secretary it would seem that she is either unaware of how USCIS actually adjudicates petitions filed on behalf of immigrants who would brings jobs and growth to our economy, or the entire announcement was nothing more than one big publicity stunt on behalf of her boss. Take your pick. Either way the announcement bears little or no relation to the facts on the ground and USCIS continues to enforce policies that any normal person would think are deliberately designed to keep out the best and brightest from the US.
For the past 18 months USCIS has been on the war path against H-1B petitions filed by corporations on behalf of an employee who is also the corporation’s sole owner. In defiance of long-standing legal principle that considers a corporation to be a separate legal entity, USCIS is denying these petitions on the grounds that no bona fide employer-employee relationship exists. To put this in proper context, it is important to remember that H-1B visas would not otherwise be available to just any worker who willy-nilly sets up a corporation and uses it as a vehicle to come to the US. These visas are limited in number (approximately 65,000 per year), available only to individuals who have at least a bachelor’s degree (or the equivalent experience) and who will be working in a “specialty occupation” (defined by USCIS as an occupation that requires the application of a specialized body of knowledge). More importantly, corporations that sponsor these individuals must commit to paying at least the prevailing wage as determined by the Department of Labor. This provision is correctly designed to prevent companies from undercutting the US labor market by paying lower wages to foreign workers. In other words, these are exactly the kinds of entrepeneurs that we should be encouraging to set up shop in the US. Educated individuals who will perform skilled labor, make at least enough money to pay themselves the prevailing wage and grow sufficiently so as to then hire American workers.
Following the announcements Director Mayorkas responded to a question from the press on this exact issue. He was asked whether according to this new policy someone who wanted to start their own company would now be qualified for an H-1B visa. Mayorkas fudged the answer by responding that “there must be an employer/employee relationship.” Justifiably unsatisfied with that answer the journalist followed up with this question: “Before if you were the only sole owner of the company, you’re not qualified? And now if you’re the only owner of the company you are qualified, right? Is that the case?” Director Mayorkas tried to avoid answering directly by stating that being the sole owner of a company did “not necessarily mean that the individual could not be the beneficiary of an H-1B visa for which the company applied” because … and here comes the good part….”the company might have an independent board of directors that controls the employment of that individual who is the sole employee and who started the company.” So lets get this straight. Someone who is educated, hard working and willing to put their capital at risk in a start-up venture in the US would cede control over his own employment to an outside board of directors?? I’m not sure whether to laugh or cry at that answer. One thing is clear, however. USCIS continues to deny petitions filed by companies on behalf of their sole owners and nothing has changed on the ground since this announcement.
So once again I ask. Was this simply a publicity stunt designed to fool the public into actually thinking that someone was giving serious thought to utilizing our immigration laws in order to to create jobs and grow the economy? Or merely another example of an official who lacks any understanding of how the real world operates? You be the judge.