New Legislation Proposes Game-changing Startup Visas and Green Cards for PHDS

January 31, 2022 by Piotr Messerszmidt

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On Tuesday, January 25, 2022, America Competes Act, the bill supported by President Joe Biden, was introduced in the House of Representatives. The bill has bipartisan support and is primarily focused on encouraging and strengthening American scientific and technological innovation. It also amends the Immigration and Nationality Act, by creating a new classification of “W” nonimmigrant visa for entrepreneurs with an ownership interest in a startup entity, essential employees of a startup entity, and also their spouses and children.

This new visa category is a response to the absence of startup visas in the United States, which is placed at a disadvantage compared to nations like Canada or Australia in retaining and attracting foreign entrepreneurs. Its aim is to attract the world’s best immigrant entrepreneurs, which will allow them to launch new companies in the United States and employ millions of Americans. 

WHO WILL QUALIFY FOR THE “W” VISA?

To qualify for a new temporary non-immigrant “W” visa, the individual should possess an ownership interest of not less than 10% in a start-up entity, play a central and active role in the management or operations of the start-up entity, and have the knowledge, skills, or experience to substantially assist the start-up entity with the growth and success of its business. Also, during the 18-month period preceding the filing of the petition, the start-up entity shall receive at least $250,000 in qualifying investments from one or more qualified investors, or at least $100,000 in qualifying government awards or grants. The “W” status allows the qualifying startup founders to stay and work in the US for an initial period of 3 years.

WILL A “W” VISA EXTENSION BE POSSIBLE?

The initial status may be extended for an additional 3-year period if the “W” visa holder will:

  1. possess an ownership interest of not less than 5% in the start-up entity that formed the basis for the alien’s initial petition for status, 
  2. continue to play a central and active role in the management or operations of the start-up entity; 

Additionally, in order for the “W” visa holder to receive a visa extension, the abovementioned start-up entity, during the initial period of the status of the “W” visa holder, shall: 

  1. receive at least $500,000 in additional qualifying investments from one or more qualified investors, qualifying government awards or grants, or a combination of such funding, 
  2. create at least 5 qualified jobs, or
  3. generate not less than $500,000 in annual revenue in the United States and averaged 20% in annual revenue growth. 

What is more, “W” visa holder, whose status was extended based on previously discussed premises, will be eligible for two further 1-year extensions, given the visa holder continues to meet these benchmarks and prove, that the start-up entity has made substantial progress in satisfying the criteria of job creation, revenue generation and receipt of investment capital. 

W VISA – AND WHAT’S NEXT?

The new provisions will allow for “W” visa holders to adjust their status to lawful permanent residence as an immigrant entrepreneur, as long as they have created 100 full-time jobs and raised more than $1.25 million in investment or have more than $1 million in annual revenue in the 2 years preceding the green card application.

A NEW GREEN CARD FOR PHDS

Another significant change would be exempt from annual green card limits for individuals with PhDs in STEM fields. Under the bill, individuals can gain permanent residence without being placed in a green card backlog (or be subject to per-country limits) if they “have earned a doctoral degree in a program of study involving science, technology, engineering, or mathematics—from a qualified United States research institution; or from a foreign institution if such degree is the equivalent to a degree issued by a qualified United States research institution; and are seeking admission to engage in work in the United States in a field related to such degree.”

CAN I APPLY FOR A W VISA NOW?

The above-mentioned changes are still under consideration by the American legislature. The Bill will need to pass both the House and the Senate before it can be sent to the president for signature and implementation.