Sec. 80302. Start-up entities; nonimmigrant entrepreneurs and employees
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Chapter 2 of title II of the Immigration and Nationality Act ( 8 U.S.C. 1181 et seq. ) is amended by inserting after section 218 the following: The Secretary shall establish procedures for an alien to obtain nonimmigrant status under section 101(a)(15)(W)(i). Such procedures shall include a petition filed by the alien that shall be approved by the Secretary before a visa may be granted. The petition shall be in such form and contain such information as the Secretary shall prescribe, except that, in the case of an alien seeking a change of nonimmigrant classification, the petition shall include an option to request such a change. The Secretary may approve a petition under subparagraph
(A)if the Secretary determines that— the alien possesses an ownership interest in a start-up entity of not less than 10 percent; the alien will play a central and active role in the management or operations of the start-up entity; the alien possesses the knowledge, skills, or experience to substantially assist the start-up entity with the growth and success of its business; and subject to paragraph (4), the start-up entity, during the 18-month period preceding the filing of the petition, received— at least $250,000 in qualifying investments from one or more qualified investors; or at least $100,000 in qualifying government awards or grants. Status under section 101(a)(15)(W)(i) shall be valid for an initial period of 3 years and may be extended thereafter in accordance with this subsection. The Secretary may approve a petition to extend the initial status of an alien as a nonimmigrant under section 101(a)(15)(W)(i) for an additional 3-year period, if the Secretary determines that— the alien— possesses an ownership interest of not less than 5 percent in the start-up entity that formed the basis for the alien’s initial petition for status as a nonimmigrant under section 101(a)(15)(W)(i); and will continue to play a central and active role in the management or operations of the start-up entity; and subject to paragraph (4), during the alien’s initial period of status as a nonimmigrant under section 101(a)(15)(W)(i), the start-up entity— received 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; created at least 5 qualified jobs; or generated not less than $500,000 in annual revenue in the United States and averaged 20 percent in annual revenue growth. With respect to an alien whose status as a nonimmigrant under section 101(a)(15)(W)(i) was extended under paragraph (2), the Secretary may approve not more than 2 additional petitions to further extend such status in 1-year increments if the Secretary determines that— the alien— possesses an ownership interest in the start-up entity that formed the basis for the alien’s initial petition for status as a nonimmigrant under section 101(a)(15)(W)(i); and will continue to play a central and active role in the management or operations of the start-up entity; and the start-up entity has made substantial progress in satisfying the criteria under paragraphs
(2)and
(3)of section 218B(c) and is reasonably expected to satisfy such requirements within the 1-year period following the expiration of the alien’s status as a nonimmigrant under section 101(a)(15)(W)(i). If a start-up entity partially meets one or more of the criteria described in paragraph (1)(B)(iv) or (2)(B), and the Secretary determines, based on other reliable and compelling evidence, that the start-up entity has substantial potential for rapid growth and job creation, the Secretary may grant the applicable petition. An alien with status under section 101(a)(15)(W)(i) shall immediately notify the Secretary in writing, in accordance with procedures established by the Secretary, if he or she will no longer play a central and active role in the management or operations of the start-up entity or ceases to possess a qualifying ownership interest in the start-up entity. For purposes of subparagraph (A), the alien will cease to possess a qualifying ownership interest in the start-up entity if— during the initial 3-year period of status described in paragraph (1), the alien’s ownership interest falls below 5 percent; or during a period of status described in paragraph
(2)or (3), the alien ceases to maintain any ownership interest. With respect to an alien who establishes a qualifying ownership interest described in paragraph (1)(B)(i) in a start-up entity and is otherwise eligible for status under section 101(a)(15)(W)(i) based on such ownership, any time previously spent in such status with a different start-up entity shall not render the alien ineligible to be granted such status in accordance with this subsection. The Secretary shall establish procedures for a start-up entity that serves as the basis for an approved petition under subsection
(a)to file a petition to grant an alien status as a nonimmigrant under section 101(a)(15)(W)(ii). Status under such section shall be valid for an initial period of 3 years. The Secretary may approve an initial petition under this paragraph if the Secretary determines that the alien— has an offer from the start-up entity for employment in an executive capacity or managerial capacity; and possesses knowledge, skills, or experience that are essential to the growth and success of the start-up entity. The number of aliens with status under section 101(a)(15)(W)(ii) who may be employed by a start-up entity at any one time may not exceed— 2 such aliens if such entity has 10 or fewer full-time employees in the United States; 3 such aliens if such entity has at least 11 and not more than 30 full-time employees in the United States; 4 such aliens if such entity has at least 31 and not more than 70 full-time employees in the United States; and 5 such aliens if such entity has more than 70 full-time employees in the United States. The Secretary may approve a petition to extend the status of an alien as a nonimmigrant under section 101(a)(15)(W)(ii) for one additional 3-year period if the Secretary determines that the alien continues to meet the criteria described in paragraph (1). A start-up entity’s eligibility to submit new petitions for aliens under paragraph
(1)shall terminate on the date on which the start-up entity no longer serves as the basis for status of any nonimmigrant under section 101(a)(15)(W)(i). A spouse or children accompanying or following to join a principal alien with status as a nonimmigrant under clause
(i)or
(ii)of section 101(a)(15)(W) shall be entitled to status as a nonimmigrant under clause
(iii)of such section. In the case of an alien spouse with status as a nonimmigrant under section 101(a)(15)(W)(iii), the Secretary shall authorize such spouse to engage in employment in the United States and provide the spouse with an employment authorized endorsement or other appropriate work permit. The Secretary shall provide written notice to an alien admitted or otherwise granted status as a nonimmigrant under clause
(i)or
(ii)of section 101(a)(15)(W) of the Secretary’s intent to terminate such status if the Secretary has reasonable grounds to believe that— the facts or information contained in the petition for such status were not true and accurate; the alien failed to timely file or otherwise comply with the material change reporting requirement in subsection (a)(5), if applicable; or the petition was erroneously granted. A notice of intent to terminate issued under paragraph
(1)shall identify the grounds for termination and provide at least 60 days for the alien to submit rebuttal evidence. Notwithstanding section 214(b), an alien may obtain a visa or be granted status under section 101(a)(15)(W) even if such alien intends to seek lawful permanent resident status in the United States. In this section: The term full-time employee means an individual performing services in a position that requires a minimum of 35 working hours per week, and does not include independent contractors or combinations of part-time employees. Except as provided in subparagraph
(B)and consistent with subparagraph (C), the term qualified investor means— an individual who is a United States citizen or lawful permanent resident of the United States; or an organization that is located in the United States and operates through a legal entity that has its principal place of business in the United States, that is majority owned and controlled by United States citizens or lawful permanent residents of the United States, which individual or organization regularly makes substantial investments in start-up entities that subsequently exhibit substantial growth in revenue generation or job creation. The term qualified investor does not include an individual or organization that has been— permanently or temporarily enjoined from participating in the offer or sale of a security or in the provision of services as an investment adviser, broker, dealer, municipal securities dealer, government securities broker, government securities dealer, bank, transfer agent or credit rating agency; barred from association with any entity involved in the offer or sale of securities or the provision of such services; or otherwise found to have participated in the offer or sale of securities or the provision of such services in violation of law. An individual or organization shall be considered to regularly make substantial investments in start-up entities that subsequently exhibit substantial growth in revenue generation or job creation if— during the preceding 5 years, the individual or organization invested a total of not less than $600,000 in start-up entities in exchange for equity, convertible debt, or other security convertible into equity commonly used in financing transactions within their respective industries; and subsequent to such investment, at least 2 such entities each created at least 5 qualified jobs or generated at least $500,000 in revenue with average annualized revenue growth of at least 20 percent. The term qualified job means a job located in the United States that requires a minimum of 35 working hours per week that has been filled for at least 1 year by one or more qualifying employees. The term qualifying employee means a United States citizen, a lawful permanent resident, or other immigrant lawfully authorized to be employed in the United States. Such term does not include independent contractors, nonimmigrant entrepreneurs or essential start-up employees of the start-up entity, or the parents, spouses, brothers, sisters, sons, or daughters of such nonimmigrant entrepreneurs. The term qualifying government award or grant means an award or grant for economic development, research and development, or job creation (or other similar monetary award typically given to start-up entities) made by a Federal, State, or local government entity (not including foreign government entities) that regularly provides such awards or grants to start-up entities. The term does not include any contractual commitment for goods or services. The term qualifying investment means an investment of lawfully derived capital made in good faith in a start-up entity that is a purchase from such entity of its equity, convertible debt, or other security convertible into its equity that is or becomes commonly used in financing transactions within such entity’s industry. The term qualifying investment does not include a direct or indirect investment from an alien seeking status under section 101(a)(15)(W), the parent, spouse, brother, sister, son, or daughter of such an alien, or any corporation, limited liability company, partnership, or other entity in which such entrepreneur or the parents, spouse, brother, sister, son, or daughter of such entrepreneur has any direct or indirect ownership interest. The term Secretary means the Secretary of Homeland Security. The term start-up entity means a United States business entity that has lawfully conducted business during any period of operation since its formation, and that was formed within the 5-year period immediately preceding the date the alien files a petition for classification under section 101(a)(15)(W)(i). The term United States business entity means any corporation, limited liability company, partnership, or other entity that is organized under Federal law or the laws of any State, and that conducts business in the United States, that is not an investment vehicle primarily engaged in the offer, purchase, sale or trading of securities, futures contracts, derivatives or similar instruments. The Secretary shall establish procedures for an alien who is eligible under subsection
(c)to petition for classification as an immigrant entrepreneur. An alien classified as an immigrant entrepreneur under this section, and the spouse and children of such alien, shall be immediately eligible for immigrant visas and such visas shall not be subject to or counted against the numerical limitations under section 201, 202, or 203. The Secretary may approve a petition filed by an alien for classification as an immigrant entrepreneur under this section if the Secretary determines that— the alien— is present in the United States and has maintained status as a nonimmigrant under section 101(a)(15)(W)(i) or another nonimmigrant status pursuant to which the alien is employed by a start-up entity (as such term is defined in section 218A(f)(8)); has maintained an ownership interest in the start-up entity since its formation; and plays an active and central role in the management or operations of the start-up entity; the start-up entity has created at least 10 qualified jobs (as such term is defined in section 218A(f)(3)); and the start-up entity has— received not less than a total of $1,250,000 in qualifying investments, qualifying government grants or awards, or a combination of such funding; or generated not less than $1,000,000 in annual revenue in the United States in the 2-year period preceding the filing of the petition. An alien classified as an immigrant entrepreneur under this section, and the spouse and children of such alien, may apply for an immigrant visa in accordance with the procedures described in section 221 or for adjustment of status under section 245 if such individuals are otherwise eligible for adjustment of status. The Secretary may adjust the monetary amounts described in paragraphs (1)(B)(iv) and (2)(B) of section 218A(a) and section 218B(c)(3) on a biennial basis by the percentage (if any) by which the Consumer Price Index for All Urban Consumers for the month of June preceding the date on which such adjustment takes effect exceeds the Consumer Price Index for All Urban Consumers for the same month of the second preceding calendar year. Any such increase shall apply to aliens filing petitions on or after the date on which the increase takes effect. The Secretary may require an alien petitioning or applying for any benefit under section 218A or 218B to pay a reasonable fee that is commensurate with the cost of processing the petition or application. In addition to any required processing fee, the Secretary shall collect a $1,000 supplemental fee in connection with each petition for classification of an alien as a nonimmigrant under section 101(a)(15)(W)(i) or as an immigrant under section 218B. Supplemental fees collected under subparagraph
(A)shall be credited as discretionary offsetting collections to the currently applicable appropriation, account, or fund of the National Science Foundation for purposes of providing scholarships for low-income individuals described in section 414(d)(2)(A) of the American Competitiveness and Workforce Improvement Act of 1998 ( 42 U.S.C. 1869c(2)(A) ), and shall be made available for such purposes only to the extent and in the amounts provided in advance in appropriations Acts. Subject to any reasonable conditions, the Secretary shall establish premium processing procedures for petitions or applications filed under sections 218A and 218B in accordance with section 286(u) and the Emergency Stopgap USCIS Stabilization Act ( Public Law 116–159 ). . The table of contents of the Immigration and Nationality Act ( 8 U.S.C. 1101 et seq. ) is amended by inserting after the item relating to section 218 the following: Sec. 218A. Start-up entities; admission of nonimmigrant entrepreneurs and employees. Sec. 218B. Admission of immigrant entrepreneurs. Sec. 218C. Inflation adjustment; fees. .
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Sec. 80302
Start-up entities; nonimmigrant entrepreneurs and employees
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