By Amber Blasingame, Associate Attorney, Colorado Springs Office
According to Albert Einstein the
definition of insanity is doing the same thing over and over again and
expecting different results. Submission of a cap subject H-1B petition,
especially in the last two years, comes dangerously close to insanity. It is no
wonder that a state government, in an effort to stop the insanity, would feel
compelled to create a “workaround” for bright, up-in-coming, foreign-national
entrepreneurs who have paid into the state economy directly and indirectly in
the form of tuition for over four years. Massachusetts’ Governor Deval Patrick
proposed just such a plan, the “Global Entrepreneur in Residence Program,” on
April 10, 2014.
The governor introduced the
Residence Program soon after USCIS announced reaching the cap for the second
year in a row on April 1, 2014, which lead to yet another lottery for cap
subject petitions. Only 65,000 H-1B temporary worker visas are available
annually, starting October 1, with an exemption of 20,000 for beneficiary’s who
have earned an Advanced Degree from a post-secondary educational institution in
the United States. H-1B visas are a popular choice for professionals who have
earned at least a four-year bachelor’s degree and received an offer of
employment in the United States consistent with their education. As the economy
has slowly recovered in the last six years, the H-1B visas have become more and
more coveted. For fiscal years 2014 and 2015, USCIS received twice as many
petitions than visas available which created a lottery system. No longer is an
employer guaranteed at least consideration of its petition if received exactly
on April 1, 2014. For fiscal year 2015,
USCIS received approximately 172,500 petitions as reported on April 7, 2014.
The “Global Entrepreneur in
Residence Program” would establish the Massachusetts Tech Collaborative “to
place foreign workers with participating university employers.” Institutions of
higher education are exempt from the annual H-1B cap. As long as a beneficiary
is employed by a university or college or employed by an organization in
association with a University or college, the resulting petition for H-1B
status is not counted against the annual 65,000 and/or 20,000 exemption quota.
The program would be available to
recipients of advanced degrees in the STEM fields (Science, technology,
engineering, science) or accounting, finance, economics, business or business
administration, and who “desire to move to or remain in the commonwealth.”
Universities would sponsor the foreign nationals in H-1B status and employ them
on a part-time basis, 8-15 hours per week, “while they develop entrepreneurship
skills.”
Developed skills may include
starting a new venture. Such skills and development could actually open foreign
nationals to other avenues for nonimmigrant or immigrant status in the United
States such as intercompany transferee status, treaty trader or investor visas
or green card status based on investment or multi-national manager capacity.
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