International Entrepreneur Rule Published - While DHS Tries to Rescind

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.

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