USCIS Proposes Rule to Welcome International Entrepreneurs

DHS allowing foreign entrepreneurs to come to the U.S.

On August 26th, 2016, the Department of Homeland Security (DHS) announced a proposal to introduce a creative new way for foreign entrepreneurs to come to the United States to grow businesses and create jobs.

The proposal, which has been under discussion for quite some time, proposes the implementation of a new discretionary parole authority to allow foreign entrepreneurs to enter the United States to develop new business enterprises. Note that this is neither the same as the EB-5 Investor Visa program which can lead to lawful permanent residence in the US nor the E2 program which respectively lead to lawful permanent residence in the US which is the grant of a renewable investment based nonimmigrant visa.

The new rule would put in place a provision that will allow the use of parole on a case-by- case basis for founders of start-up enterprises who have demonstrated a substantial potential for business development and job creation and whose entry into the country would amount to a significant public benefit.

This proposal, which is being called the International Entrepreneur Rule, is based upon an existing authority possessed by DHS. Currently, DHS has the discretion to parole certain individuals into the country for urgent humanitarian purposes or significant public benefit. The new rule, which was partly proposed to compete with other countries that have similar programs, extends this discretionary parole authority to address the needs of foreign entrepreneurs who do not qualify for admission to the country under other visa classes.

What is Parole?

Parole is a temporary authorization to enter the United States that is not regarded as an admission or a grant of status in the U.S. Because parole is not regarded as an admission, an applicant can be paroled into the country, regardless of whether or not they are admissible. However, in order to change or gain status in the United States, the parolee would may need to leave the country and reenter with the new status after having gone through the appropriate procedures. With an approved and current immigrant visa (such as EB-1A, EB-2, EB-3, EB-5, etc.), the parolee may also If timing is correct, and the parolee qualifies for immigrant status, it could also be possible to file for adjustment of status (AOS) in the United States.

To grant parole under the International Entrepreneur Rule, the adjudicator will need to decide, on the basis of all of the facts and circumstances, that:

  1. Granting the applicant parole would provide a significant public benefit: during the initial period, the startup should generate at least $500,000, have revenues grow by 20% per year, and generate 10 full-time jobs; and
  2. The applicant is deserving of a grant of parole based on his or her individual merits.

If parole is granted, the applicant will receive an initial stay of up to 2 years, which can be extended for another 3 years, giving the applicant a total 5 years to manage and develop his or her start-up enterprise in the United States. The applicant’s spouse and minor, unmarried children would also be eligible for parole.

In addition, the applicant will be authorized for employment in the United States, but only as it pertains to his or her involvement with start-up enterprise. The applicant’s spouse would also be eligible to apply for an Employment Authorization Document allowing him or her to seek employment in the United States; the employment does not have to be with the startup enterprise.

How to Qualify for Parole Under the International Entrepreneur Rule

The application fee for this new statute, as it is proposed, is $1200 per applicant, and there can be up to 3 applicants for parole, per company. In order to qualify, applicants must prove the following:

  1. The formation of a new start-up enterprise in the US (lawfully formed within the 3 years preceding the application). Each startup may support a maximum of 3 entrepreneur parolees.
  2. That the applicant possesses a significant ownership interest in the enterprise (at least 15%) and is involved in its day-to- day operations. The applicant cannot merely be a passive investor. The investor’s equity stake may lower to no less than 10% ownership of the equity at all other times.
  3. The start-up enterprise has lawfully conducted business since its formation and has a substantial potential for rapid growth and job creation in the United States exhibited by the attraction of significant capital investment (at least $345,000 within the 12 months preceding the application) from certain qualified US investors with established records of successful investments (such as angel investors, venture capital firms, or start-up accelerators) or government awards or grants for research and development (at least $100,000 worth of grants within the 12 months preceding the application). Qualified investment cannot come from the entrepreneur or his family members, nor from corporations owned by the entrepreneur or his family. The investor must also maintain a household income of at least 400% of the HHS federal poverty line.

It is believed that each year, almost 2,940 entrepreneurs will be qualified to apply for parole under the International Entrepreneur Rule. Currently, the the public was allowed to comment on the proposal for 45 days after the date of the publication of the rule before finalization. The full text of the proposal can found at www.uscis.gov.