USCIS Proposes Rule on Parole for Certain International Entrepreneurs
U.S. Citizenship and Immigration Services (USCIS) has published a proposed rule allowing certain international entrepreneurs to be considered for parole (temporary permission to be in the United States) so they may start or scale their businesses in the United States.
The proposed rule would allow the Department of Homeland Security (DHS) to use its existing discretionary statutory parole authority for entrepreneurs of startup entities whose stay in the United States would provide a “significant public benefit through the substantial and demonstrated potential for rapid business growth and job creation.” Under this proposed rule, DHS may parole, on a case-by-case basis, eligible entrepreneurs of startup enterprises:
- Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
- Whose startup was formed in the United States within the past three years; and
- Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by:
- Receiving significant investment of capital (at least $345,000) from certain qualified U.S. investors with established records of successful investments;
- Receiving significant awards or grants (at least $100,000) from certain federal, state, or local government entities; or
- Partially satisfying one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation.
Under the proposed rule, entrepreneurs may be granted an initial stay of up to two years to oversee and grow their startup entities in the United States. A subsequent request for re-parole (for up to three additional years) would be considered only if the entrepreneur and the startup entity continue to provide a significant public benefit as evidenced by substantial increases in capital investment, revenue, or job creation.
USCIS proposes that once the application for entrepreneurial parole is approved, the applicant and family members must leave the United States to be granted parole; they may not change to nonimmigrant status within the United States. Proving eligibility as an International Entrepreneur will require a $1,200 filing fee, completion of an Application for Entrepreneur Parole (Form I-941) and the submission of extensive evidence. USCIS will review the evidence and approve or deny the application with no right of rehearing or appeal.
Reaction. Some believe that venture capitalists and foreign entrepreneurs may be disappointed by this proposed rule. They may see the benefit of entrepreneurial parole as too little and too short in return for the substantial effort needed to meet the requirements. Moreover, they may be disappointed to learn that the USCIS proposal fails to take into account the harm associated with a revocation of parole (whether based on material business changes or otherwise) and the absence of any administrative or judicial review. Also disappointing is the fact that the proposed regulation would offer no pathway to lawful permanent resident status. However, if USCIS receives compelling and substantiated comments, the final rule could become a viable avenue to jump-starting innovation, job creation, and economic growth.
While this proposed rule may be useful for entrepreneurs to obtain temporary status in the United States, it does not provide any path to permanent residence. Entrepreneurs who want to live and work in the United States permanently will have to await guidance on a permanent residence option—national interest waivers for entrepreneurs. Guidance on that is expected shortly. Stay tuned.
The U.S. Alliance for International Entrepreneurs (USAIE) has written a summary and initial analysis of the proposed international entrepreneurs rule, available on the USAIE website at http://usaie.org/uscis-proposes-international-entrepreneur-rule-usaie-summary/.
Meanwhile, the notice of proposed rulemaking in the Federal Register invites public comment for 45 days, after which USCIS will address the comments received. The proposed rule does not take effect with the publication of the notice of proposed rulemaking. It will take effect on the date indicated in the final rule when it is published in the Federal Register.
