Sophie Alcorn
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Here’s another edition of “Dear 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.”
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Dear Sophie,
Both my co-founder and I have E-2 status. We need to find a quick visa option because 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, but we’re concerned about timing.
I know IEP is a new option; how long is it taking? Can it be expedited? Should we consider alternatives?
—Fast-Flying Founder
Dear Fast-Flying,
Congratulations on your upcoming round! I’m still super excited that International Entrepreneur Parole (IEP) can help founders come to the U.S. It also adds a lot of value while we’re waiting for Congress to pass the Startup Visa (check out my recent podcast on the potential new startup visa with my colleague Nadia Zaidi, an attorney at my firm and an expert in immigration law for startups).
However, recent experience demonstrates that getting IEP is anything but rapid.
So, how long will it take?
Premium processing — which usually guarantees U.S. Citizenship and Immigration Services (USCIS) will make a decision or issue a Request for Evidence (RFE) within 15 days for an additional fee – is currently not available for IEP cases.
Based on the numerous IEP cases we’ve filed for startup founders since the Biden administration officially resurrected the program last May, USCIS is taking at least six months to get to the point of reaching a Request for Evidence or, possibly, a decision. Taking the subsequent boarding foil process into account, it seems that entrepreneurs should allow a minimum of one year for the IEP process.
I feel so strongly that a change must be made to this process that I’ve been working behind the scenes with other immigration attorneys and groups to address these issues. Additionally, I’ve been advocating for other improvements to streamline the IEP application process. I was proud to be a part of last year’s efforts that pushed U.S. Customs and Border Protection 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!
Working to make IEP more efficient and effective
I recently wrote a letter on behalf of the Coalition for International Entrepreneurship to Secretary of Homeland Security Alejandro Mayorkas, who oversees USCIS.
The letter states that several problematic procedural issues make the IEP “volatile, uncertain, complex, and ambiguous” (or VUCA, a term I learned from my 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 recommended 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 14-day time frame – 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 utilizing “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.” This would be a step in the right direction.
Validating qualified investors
As you likely 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. This is a slight increase from the $250,000 requirement when the IEP program began. On October 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 Mayorkas to “establish regular interactions with stakeholders in the academic, entrepreneur, legal, and investment communities to further refine the program” and 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.
As you can see, we are working hard to make positive and lasting change. I hope to share updated good news on the IEP process and the creation of a W startup visa soon. If your startup is in one of the 16 states I mentioned in this previous Dear Sophie column, write a letter to your senator telling them why creating a startup visa is vital to innovation and job creation in the U.S. We’re in this together!
Best short-term option?
Given your timing sensitivity, please 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.
Steadfastly optimistic,
Sophie
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The information provided in “Dear Sophie” is general information and not legal advice. For more information on the limitations of “Dear Sophie,” please view our full disclaimer. “Dear Sophie” is a federally registered trademark. 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!
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