Department of Homeland Security (DHS) has recently announced its new entrepreneur program in which it is hoping to attract entrepreneurs from around the world to enter the U.S. and start U.S. businesses. Historically, that required either:

(1) Taking advantage of an existing E-1 or E-2 treaty between the investor’s country of citizenship (or perhaps multiple citizenships) and the U.S. leaving out the great majority of countries in the world and therefore citizens of those countries; or

(2) Investing at least one million dollars in the EB-5 program (though it could be reduced to $500,000 in high unemployment or rural areas).

The new entrepreneur program is a result of a number of years of DHS dialoging with the U.S. business community and other interested parties.

The most logical beneficiaries of the new entrepreneur policy would be entrepreneurs from countries where their own economy might not be terribly strong but they see greater business opportunities in the United States.  A very good example would be Turkey which is currently under a tremendous amount of pressure from its Kurdish neighbors (and Kurds within Turkey), ISIS, Al-Qaeda, and their own internal political warring between the current regime and followers of Gulen. Many Turkish business persons have been looking at opportunities elsewhere and a certain percentage of those successful Turkish business folks have been coming and will continue to come to the United States interested in investing in the U.S. market.

We recently filed a series of E-2 change of status petitions for Turks, some of which have been approved and others which have been denied.  The level of scrutiny exhibited by DHS in those denied cases has been remarkable.  These investors are established business persons with strong business track records and no criminal history and yet DHS persists in finding that the evidence presented is insufficient to overcome the government’s view that the investment funds are derived from criminal means.  The government has absolutely no basis for any finding or even suggestion that the funds are tied to any criminal enterprises. While we all want to be sure that investors are not coming to launder illegally acquired funds, the government’s attitude in these particular cases is not only extreme but it is in complete opposition to the spirit of the new entrepreneur program.  If we are going to create these kinds of excessive standards for evidence rather than relying on the legally set standard of a mere preponderance of the evidence, we simply are going to send more entrepreneurs away from the U.S. into our competitors’ markets.  I would suggest that DHS needs to take a careful look at what is happening on the ground with their adjudicators and follow a consistent message.  If we are going to be pitching entrepreneurs to come to the U.S. and place their capital at risk we need to do so exercising a reasonable standard of evidence with regard to the source of their capital and how they invest their funds in the United States.