On December 14, 2017, US Citizenship and Immigration Services (USCIS) published instructions and the forms for applying for the International Entrepreneur parole, announced in 2016 (see prior blog posts here).
The rule was due to take effect in July 2017, but the Trump administration delayed the implementation. However, on Dec. 1, 2017, the U.S. District Court for the District of Columbia vacated the delay rule as a result of litigation in National Venture Capital Association v. Duke. The court found that the Trump Administration failed to comply with procedural requirements when it postponed the effective date of the rule earlier this year. Last month, the Administration submitted a proposal to rescind the regulation to the Office of Management and Budget; the proposal remains under review.
The USCIS announcement states that "While DHS complies with the court order and implements the [entrepreneur] parole program, DHS is also in the final stages of publishing a notice of proposed rulemaking seeking to remove the [program]"
Eligibility and applications
The regulation permits qualified foreign entrepreneurs to seek temporary parole if they have established a qualifying U.S. start-up business and the business has received at least $250,000 from qualified U.S. investors or at least $100,000 in grants or awards from U.S. government entities. Applicants must hold an ownership interest of at least 10% and must play an active and central role in the operations of the business.
Applicants must submit USCIS Form I-941, a $1,200 filing fee and an $85 biometrics fee. The rule permits successful applicants to be granted temporary parole for up to five years, but entrepreneur parolees are not eligible for permanent residence unless they qualify under another U.S. immigration program.
To file - or not?
Though USCIS has agreed to accept and process entrepreneur applications, it is impossible to tell how (or whether) they will be adjudicated. Given the agency's dislike of the program, their general reluctance to approve cases recently, and the high fees, we cannot recommend filing yet. However, we are analyzing the situation very closely for our many clients with start-up businesses.
Please contact Elaine Martin directly with any questions.
The US Department of Homeland Security has finally issued guidance on how Honduran nationals can apply for the 6-month extension of Temporary Protected Status (TPS) that was announced on November 6.
Current TPS Honduran beneficiaries seeking to extend their TPS must re-register during the 60-day re-registration period that starts on December 15, 2017. The draft of the Federal Register notice explains that
Through operation of this Notice, your existing EAD issued under the TPS designation of Honduras with an expiration date of January 5, 2018, is automatically extended for 180 days, through July 4, 2018. You do not need to apply for a new EAD in order to benefit from this 180-day automatic extension.
However, we recommend that people do apply for a new EAD, to avoid the need to explain the automatic extension to employers, driver's licence offices, etc. The FR notice describes how to explain the extension to employers until a new EAD arrives.
To reduce confusion over this extension at the time of hire, you should explain to your employer that the validity of your EAD has been automatically extended through July 4, 2018. You may also provide your employer with a copy of this Notice, which explains that your EAD has been automatically extended.
The 6-month extension also allows TPS re-registrants to apply for a new Employment Authorization Document (EAD/work permit). Eligible TPS beneficiaries who re-register during the 60-day period and request a new EAD will receive one with an expiration date of July 4, 2018.
To re-register, current TPS beneficiaries must submit:
Applicants may request a waiver of the government fees with evidence of inability to pay. To do so, applicants must file a Form I-912, Request for Fee Waiver, or submit a written request. Fee waiver requests must be accompanied by supporting documentation. USCIS will reject the TPS application of any applicant who fails to submit the required filing fees or a properly documented fee waiver request.
All USCIS forms are free. Applicants can download these forms from the USCIS website at uscis.gov/forms or request them by calling USCIS toll-free at 1-800-870-3676.
TPS beneficiaries are reminded that, prior to July 5, 2018, DHS will review the conditions in Honduras before July 5, 2018, and decide whether extension, redesignation, or termination of TPS is warranted.
The American Immigration Lawyers Association (AILA) has issued a helpful guide to how a government shutdown might affect the agencies that deal with immigration. The full text is below.
Congressional negotiations on a federal spending bill remain very active. To avoid a federal government shutdown, a decision or a short-term continuing resolution (CR) to fund the government at current levels must be reached by Friday, December 8, 2017. Until a deal is made or a CR is passed, the threat of a shutdown remains a possibility. Drawing on information from 2013, when the federal government closed for 16 days due to a budget impasse, here is an overview of how a shutdown would impact immigration-related agencies:
Generally, if the government shuts for budgetary reasons, all but "essential" personnel are furloughed and are not allowed to work.
USCIS: USCIS is a fee-funded agency with the exception of E-Verify, so if the government shuts down, only E-Verify shuts down. Otherwise, it's business as usual.
DOS (Department of State): Visa and passport operations are fee-funded and should not be impacted by a lapse in appropriations, but operating status and funding will need to be monitored closely. If visa operations are affected, consular posts will generally only handle diplomatic visas and "life or death" emergencies.
CBP (Customs and Border Protection): Inspection and law enforcement personnel are considered "essential.” Ports of entry will be open; however, processing of applications filed at the border may be impacted.
ICE (Immigration and Customs Enforcement): ICE enforcement and removal operations will continue, and ICE attorneys will typically focus on the detained docket during a shutdown. The ICE Student and Exchange Visitor Program (SEVP) offices are unaffected since SEVP is funded by fees.
EOIR (Executive Office for Immigration Review): EOIR's detained docket is typically considered an essential function and would therefore continue to operate. During the 2013 shutdown, EOIR continued to accept court filings, even in non-detained cases.
DOL (Department of Labor): The OFLC would cease processing all applications in the event of a government shutdown, and personnel would not be available to respond to e-mail or other inquiries. OFLC's web-based systems, iCERT and PERM, would be inaccessible, and BALCA dockets will be placed on hold.
CIS Ombudsman: The DHS Office of the CIS Ombudsman would close and would not accept any inquiries through its online case intake system.
Elaine Martin has been practising US and global immigration law since 1997. She is an immigrant herself (from Ireland), so has a special understanding of the legal and emotional challenges involved in relocating to a new country.