On February 4, 2022, the House of Representatives passed the American Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act (known as the America COMPETES Act of 2022). The bill is aimed at “outcompeting China and the rest of the world in the 21st century.” Title III of the COMPETES Act adds immigration provisions to the bipartisan U.S. Innovation and Competition Act that was passed in the Senate in June 2021.
The immigration provisions in Title III include the creation of a W nonimmigrant visa for entrepreneurs with ownership interest in a start-up entity. Title III also provides STEM Ph.D. graduates seeking to work in the United States in a field related to such degree a direct path to Legal Permanent Residence (LPR) status.
W Nonimmigrant Visa
Title III creates a W nonimmigrant visa for entrepreneurs with at least a 10% ownership interest in a start-up that was formed in the 5-year period preceding application. Like the International Entrepreneur Rule (IER), the W visa has eligibility requirements regarding levels of investment from qualified investors and a showing that the applicant has knowledge and skills that would substantially assist the start-up. The W visa would allow an initial validity period of three years with the possibility of 3-year extensions and 1-year extensions if investments and job creation meet certain standards. One important difference from the IER is that the W visa allows nonimmigrants to have dual intent, meaning that W nonimmigrants would be able to apply for LPR if the enterprise meets additional investment and job creation levels. Unlike the proposed W nonimmigrant visa, there is no direct route to LPR from IER status, as IER admission to the United States is only a type of parole.
Benefits for STEM Ph.D.s
Foreign nationals with Ph.D.s STEM degrees, whether from the United States or foreign equivalent degrees, would be exempted from the annual green card limits. This would allow Ph.D.s to circumvent the immigrant visa backlog that so many Ph.D.s, especially those from India and China, face.
Applications for the W nonimmigrant visa, the W immigrant visa and the STEM immigrant visa would require an additional $1,000 supplemental fee that will be used to fund scholarships for U.S. STEM students.
The immigration provisions in the House bill could be transformative for entrepreneurs and those with Ph.D.s in STEM fields. But it must be reconciled with the Senate version. If the immigration provisions make it through that process and are passed by the Senate, the United States would take a big step toward increased competitiveness for foreign talent with other countries that make entry and permanent residence for select individuals much easier. Passage of the bill by the Senate would also be significant, as Congress has not passed major immigration reform in decades.
Jackson Lewis attorneys will continue to follow the progress of this bill and provide updates as they become available.