The Illusory Entrepreneur Parole Program is No More

May 25, 2018

The Department of Homeland Security (DHS) is proposing a rule to end a program that allows certain foreign entrepreneurs to be considered for parole to temporarily come to the United States to develop and build start-up businesses here, known as the International Entrepreneur Rule (IE Final Rule). An advance copy of the proposed rule is currently available and comments will be accepted for 30 days after the publication of the proposed rule in the Federal Register on May 29, 2018.

In July 2017, DHS published a final rule to delay the implementation date of the IE Final Rule to March 14, 2018, to give the Department time to draft a rescission of the IE Final Rule. However, in December 2017, a federal court vacated the delay rule, requiring USCIS to begin accepting international entrepreneur parole applications consistent with the IE Final Rule.

DHS is now proposing to eliminate the IE Final Rule because the department believes that it represents an overly broad interpretation of parole authority, lacks sufficient protections for U.S. workers and investors, and is not the appropriate vehicle for attracting and retaining international entrepreneurs.  Other visa classifications under The Immigration and Nationality Act enable certain entrepreneurs, on a more limited basis, to start businesses and work in the United States, such as the E-2 (treaty trader) and L-1 (multinational transferee) nonimmigrant classifications and the EB-5 (entrepreneur investor) immigrant classification.

 

December 14, 2017

On December 14, 2017, U.S. Citizenship and Immigration Services (USCIS) announced  it would start accepting applications for parole under the International Entrepreneur Rule (IER). This grant of parole is commonly referred to as Entrepreneur Parole.

In August 2016, the Obama administration had proposed this rule to help international entrepreneurs stay in the U.S. temporarily while starting and growing their companies. As previously noted on this blog, just six days before USCIS was to begin accepting applications, the Trump administration published a rule delaying the effective date until March 14, 2018, while it considered whether it would eliminate the program.   The administration was challenged in court and the court ordered USCIS to accept applications for the IER program.

Although DHS plans to publish a proposed rule to eliminate the IER, until the rule is rescinded, international entrepreneurs who meet the program requirements are free to apply.  Clients should be warned that parole could be revoked if the IER is rescinded.

Under the IER, USCIS may use its parole authority to grant a period of authorized stay, on a case-by-case basis, to foreign entrepreneurs who demonstrate that their stay in the United States would provide a significant public benefit through their business venture and that they merit a favorable exercise of discretion.

Under this final rule, entrepreneurs granted parole will be eligible to work only for their start-up business. The spouses and children of the foreign entrepreneur may also be eligible for parole. While spouses may apply for work authorization once present in the United States as parolees, the children are not eligible to work. IER parole may be granted for up to three entrepreneurs per start-up entity.

Eligibility

Entrepreneurs applying for parole under this rule must demonstrate that they:

• Possess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.
• Have a central and active role in the start-up entity such that they are well-positioned to substantially assist with the growth and success of the business.
• Will provide a significant public benefit to the United States based on their role as an entrepreneur of the start-up entity by showing that:
  • The start-up entity has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments;
  • The start-up entity has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities; or
  • They partially meet either or both of the previous two requirements and provide additional reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation.

• Otherwise merit a favorable exercise of discretion.

A spouse or child of an entrepreneur applying for parole under this rule must demonstrate that he or she:

• Is independently eligible for parole based on significant public benefit or urgent humanitarian reasons; and
• Merits a favorable exercise of discretion.

USCIS has provided detailed instructions for applying for this type of parole.  Contact one of our attorneys for advice on how to proceed.