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Amend entrepreneur rules to spur US economic recovery, DHS told

The DHS should issue a new memo focused on international entrepreneurs to help the US economy recover from the pandemic, the Brookings Institution has urged.
May 25 2021
3 Min Read

The US Department of Homeland and Security should issue a new memo focused on international entrepreneurs as the US economy seeks to recover from the pandemic, a Washington DC-based nonprofit public policy organisation has recommended.

In a report, the Brookings Institution urged DHS to update a memo published during the Obama administration in 2014 in order to support international entrepreneurs via a range of suggested law and regulation changes.

“The US was then and remains now at serious risk of competitive disadvantage compared to other developed countries that offer a more welcoming immigration system,” the paper read.

“In particular, universities are crucibles of entrepreneurial energy, where incubators and accelerators allow research and business to blend into new companies. Our recommendations highlight the importance of encouraging entrepreneurial initiatives on US campuses.”

Recommendations for areas where more work needs to be done include ensuring all green cards (visas) are used each year, allowing job portability for those in the lengthy employment-based green card backlogs and expanding the list of academic fields eligible for additional Optional Practical Training for STEM degree graduates.

“DHS can take the opportunity now to support economic growth and job creation”

Fostering cooperation among Immigration and Customs Enforcement, schools, and businesses to ensure OPT is working correctly as a training opportunity, as well as creating an International Entrepreneur program, were also points highlighted.

“Looking back at the 2014 DHS memo, much has been achieved by that clear and incisive directive,” the authors – consisting of range of immigration and entrepreneurship attorneys and social scientists – said.

“We encourage DHS to issue a follow-up memo expanding on those earlier ideas, and adding guidance and policy specifically to support international entrepreneurs. The US immigration system is a game of categories, and many of the categories were created at a time when most students were in class full-time and most workers were 9-5 employees.

“DHS guidance does not fully address situations encountered with the myriad of entrepreneurial ventures, university incubators, accelerators, campus-wide contests, etc. President Biden has issued an executive order that DHS should ‘identify any agency actions that fail to promote access to the legal immigration system’.

“DHS can do so, and take the opportunity now to support economic growth and job creation by providing clear guidelines for the appropriate use of existing immigration categories by entrepreneurs.”

The paper also suggests regulatory changes to add employment authorisation document categories that feature 180-day automatic extension and a timely application for renewal for authorisation.

The DHS should address OPT processing delays by granting conditional approval of employment authorisation documents pending over 90 days, allowing students to start work on receipt of the OPT I-765 application receipt, or at least permitting students to apply for OPT six months ahead of time instead of five, the paper added.

International students faced OPT application delays in 2020-21, with students filing a lawsuit before USCIS introduced flexible measures.

Brookings would also like DHS to clarify that individuals on STEM OPT extensions can engage in self-employment, if there is a valid training plan and salary.

“In our experience as immigration lawyers/professionals, college and university international advisers hesitate to recommend STEM OPT for entrepreneurs despite the fact that some entrepreneurs receive adequate funding through university-based accelerator or incubator programs to provide the legally required mentorship training to qualify for STEM OPT,” authors wrote.

“As such, international advisers should be allowed to recommend STEM OPT extensions for this population of entrepreneurs.”

Additionally, the appropriate use of Curricular Practical Training ought to be clarified.

“Some schools allow for broader use of CPT for entrepreneurial activities, while others remain restrictive in how they allow students to use CPT. The language in the regulations is not explicit in allowing for entrepreneurial activities, thus essentially leaving it up to schools to interpret.”

Most business schools do not offer CPT for internships, “even though there could be an argument that they are an integral part of the curriculum”, it continued.

“DHS should issue guidance that clarifies the use of CPT with specific attention to student entrepreneurs, and incorporate entrepreneurial examples into training modules.”

CPT can also be a “strong tool” to provide the same access to hands on learning experiences US students have to their international counterparts, as well as spur entrepreneurial ventures.

“Academic and international advisers are in the best position to evaluate whether an employment opportunity meshes with the academic program”

“The original goal of employment restrictions for international students was to ensure that the primary purpose was education— that students were not spending most of their day delivering pizzas. However, academic and international advisers are in the best position to evaluate whether an employment opportunity meshes with the academic program,” the report read.

“Internship or work experience required by any course for credit, or by any academic program and a prerequisite to completing all degree requirements, should be approvable as CPT,” it added.

“Last, we recommend clarifying that unpaid volunteer experiences do not require employment authorisation.”

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