Deval Patrick, the governor of Massachusetts, has been supporting a plan that allows US educated entrepreneurs who were born in other countries stay in the United States. In the battle this country has waged to keep the foreign entrepreneurs that are trained in this nation, the governor of Massachusetts has achieved potentially achieved significant progress.

What is the Global Entrepreneur in Residence (GER) Program

Recently, an announcement was made regarding a broad economic growth package, Patrick introduced a program that he has called the Global Entrepreneur in Residence, or GER, Program. He is proposing that foreign students who went to college or university in the state of Massachusetts and are wanting to stay in Massachusetts to become entrepreneurs can put in applications for enrollment in the GER program. This program will be headed by the Massachusetts Tech Collaborative, which is an independent state agency that is focused on the development of technology in the state of Massachusetts. The agency will then place selected people in private and public universities in the state of Massachusetts, where they will be applying for visas that their employers will be sponsoring and working part time in the meantime.

Benefits of the Program

Patrick, a Democrat, stated that the program will be one means by which the state can accelerate the creation of jobs and wealth in the economy. Greg Bialecki, who is the Secretary of Housing and economic development for Patrick, stated on Friday that “the drive behind this idea was international students who’ve come to Massachusetts; they’ve spent their school years here and want to stay here.” Right now, there are approximately 46,000 foreign college students studying in Massachusetts. The plan that Patrick proposed is fairly straightforward, while addressing a major problem with which the start-up community and economy are dealing. They are interested in keeping United States educated entrepreneurs in the country, even if they were born in foreign countries.

H-1B Visa Program Does Not Favor Entrepreneurs

According to current federal immigration law, foreign students are able to attend colleges and universities in the United States with a student visa. However, upon graduation, they will need an employer’s sponsorship for an H-1B visa that is meant for skilled foreign workers who want to stay in the US. The H-1B system does not favor entrepreneurs, since startup companies usually do not have attorneys trained in immigration law. Additionally, the application for the visa calls for a distinction between the employee and employer, which are often the same person at startups.

It is also required for the employer to prove that the employee who is being sponsored is being paid the prevailing wage in the industry, but this does not necessarily apply to entrepreneurs, as often startup founders are not paying themselves money at the moment and are just working for stakes in future earnings.

The Problematic H-1B Visa Cap

Additionally, the number of H1-B visas that are available to private employers are quite limited, and the application process is only available one time every year. On April 7, the United States Citizenship and Immigration Services made an announcement that enough H-1B petitions have been received to take all 85,000 visa spots. This happened only five business days after the start of acceptance for applications from 2014.

Conditions of Approval

Patrick’s proposal is likely to be supported in part by the democratic-controlled House and Senate of Massachusetts, and it is meant to make the process easier for entrepreneurs by circumventing the H-1B limit. Institutions of higher learning will not be subjected to the limit and will be able to apply for visas on behalf of their employees any time during the year, which means that foreign graduates that are employed via the GER program could potentially have a significantly higher chance of getting a visa than they would if they were were applying as part of the private sector.

Special Considerations

The one matter that remains is whether or not a part time employee will be covered under the definition of being affiliated with a university according to the USCIS. This criteria needs to be met in order for foreign graduate to apply for a visa under this program. According to attorney David Grunblatt, who is the head of the immigration and nationality group at Proskauer Rose, the proposal will “force the USCIS to put its money where its mouth is. It’s given a lot of lip service lately to being pro-entrepreneur, but when you dig down into the regulation, it’s not as easy as it sounds.”

An official from the Department of Homeland Security stated on Tuesday that there is no requirement for someone who wants a visa to be a full time employee in order to obtain an H-1B from a university that is cap exempt. However, the Petition needs to meet the standards of the Labor Department, which are meant to ensure the US workers are not being displaced by immigrant workers.

Interested Universities in Massachusetts

Secretary Bialecki strongly believes that the GER program is in accordance with the existing immigration laws. Additionally, he states that there are universities that have shown interest in participating in the program, although the University of Massachusetts is the only one that he can currently name publicly.

There does not appear to be an obvious incentive for universities to participate in this program, particularly since, according to Bialecki, they will not have any rights to whatever technology the entrepreneurs who are applying will develop in their spare time.

Who Will Be Hired?

he entrepreneurs that they will be hiring part time will be contributing to the universities in their own way. According to Julie Chen, who is the Vice Provost of Research at the Lowell campus of the University of Massachusetts, they will be helping the university by promoting and spreading “entrepreneurial knowledge and spirit to [its] students and faculty.” She further stated that the entrepreneurs will be expected to mentor other students who have an interest in starting their own companies, and the ones with a lot of technology in their backgrounds could be asked to tutor as well. Additionally, the program gives the university a way to retain all of the talent that it helped to develop. Chen goes on to say, “To educate a huge number of foreign students and then send them away seems like a huge waste.”

Bialecki states that Governor Patrick has made a request of 3 million dollars from the state of Massachusetts to start up the program. Chen believes that the state would watch the program with its funding, and universities would look to donors for sustainable funding.

Encouraging Federal Immigration Reform

Another benefit of Patrick’s proposal is that it is forcing movement on immigration reform within the federal government. In June, there was an immigration reform bill that went past the Senate, and it is now installed within the House of Representatives. This bill entails the creation of an additional class of start-up visas for foreign entrepreneurs. It would make it so that more H-1B visas are available to immigrants who hold advanced degrees.

Federal immigration reform would definitely be more effective in addressing the problem for entrepreneurs. The allowances under this proposal will potentially tie these individuals to the university’s indefinitely. It will make it more difficult for them to move on to other businesses and achieve success until reform is achieved at the federal level.

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Beeraj Patel, Esq.

Partner at KPPB Law
Beeraj Patel's philosophy is simple - make it easy for talented and ambitious individuals to have access to immigration materials so that they can make the choice which is right for them.
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