DHS Publishes Final International Entreprenuer Rule

DHS Publishes Final International Entreprenuer Rule

After four months of accepting public comment and implementing final revisions on the Proposed International Entrepreneur rule, the Department of Homeland Security (DHS) in collaboration with the United States Citize in and Immigration Services (USCIS) have published the final rule regarding parole for Internation al Entrepreneurs. The International Entrepreneur final rule provides a temporary pathway for foreign nationals involved in a promising start-up to remain in the United States for purposes of growing their business.

Effective on July 17, 2017, the DHS may use its authority to grant a period of authorized stay to eligible applicants. For purposes of immigration, being granted parole is not equivalent to obtaining a visa or visa status. Rather, it permits the International Entrepreneur to remain in the United States for a period of up to 30 months for the purposes outlined in the rule – i.e. continuing to direct, develop and work at the US-based start-up entity. Furthermore, there is the possibility of being granted re-parole for an additional 30 months if all the requirements continue to be met.

Overall, the purpose of the International Entrepreneur rule underlies DHS objectives for job creation, fostering innovation and improving the U.S. economy. It also represents a step in the right direction in the United States federal framework in supporting foreign entrepreneurs with executable business ideas, and not just foreign investors. For instance, in defining entrepreneur ownership requirements (8 CFR 212.19(a)(1) ), the rule takes into consideration the possible dilution of equity ownership over time from the individual foreign entrepreneur. For start-up ventures that continue to source investment and capital funding from outside resources, this is critical.

To be considered for parole as an International Entrepreneur, an applicant would need to demonstrate that he or she meets the following criteria:

  • Applicant Business. The applicant possesses 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.

  • Applicant Position. The applicant has a central and active role in the start-up entity such that the applicant is well-positioned to substantially assist with the growth and success of the business.

  • Public Benefit. The applicant can prove that his or her stay will provide a significant public benefit to the United States based on the applicant’s role as an entrepreneur of the start-up entity by:

In addition, some of the most important modifications made to the proposed rule include:

  • Minimum Investment Amount. Decreasing the total qualifying U.S. investment from $345,000 to $250,000. This amount considers the sum of investment from all qualified U.S-based investor s (i.e. angel investors, venture capital firms, incubators, etc.)

  • Ownership Interest. Decreasing the minimum percentage of applicant ownership at the time of initial parole request from 15 percent to 10 percent; and at the time of re-parole from 10% to 5%.

  • Start-up Entity Definition. Modifying the definition of “recently formed” to include entities formed within the past 5-years of the parole request.

  • Job Creation Requirements. Decreasing the minimum of 10 qualified jobs to 5 qualified jobs created by the start-up entity during the initial parole period.

I am an International Entrepreneur; Does This Mean I Can Get a Visa?

The final rule does not create a new visa category for international Entrepreneurs. Rather, it provides the opportunity to receive “Parole” as an eligible International Entrepreneur (i.e. Entrepreneur Parole). An application for the Entrepreneur Parole, Form I-941, must be completed and has several key considerations for evaluating the applicant, such as: income related conditions, biometric requirements, and a limitation on the number of Entrepreneur Parolees per start-up entity.

What is Entrepreneurship Parole?

The DHS has discretion to provide “parole” to foreign nationals entrepreneurs on a case-by-case basic. If granted parole, the applicant will be approved for a temporary period of stay for up to two and a half (2.5) years in the United States. This two 2.5 year period may be extended for an additional 2.5-years if the Entrepreneur Parolee continues to meet the requirements.

Therefore, a successful international Entrepreneur may remain for a total of five (5) years in the United States for purposes of directing, overseeing and expanding start-up operations.

How Does the New Proposed Rule for International Entrepreneurs Lead to a Visa or Green Card?

During the 5-year period of stay the international Entrepreneurs may consider applying for a non-immigrant or immigrant visa classification and status. Having an approved Entrepreneurship Parole application will certainly strengthen the applicants visa application for the respective visa category. Currently, there are several Entrepreneurship visa categories that may be suitable for successful international Entrepreneurs – notably the O - 1, E - 2, EB , H - 1B category visas.

It is important to note that under the final rule, Entrepreneurs Parolees are unable to apply to adjust or change status in the United States. In other words, the eventual visa application should be submitte d through a respective consulate and the Department of State.

ABOUT THE AUTHOR

David M. Cantor is a licensed Immigration Attorney and Global Director of Client Relations for Davies & Associates. David currently represents a strong, growing roster of foreign national Entrepreneurs, investors and U.S. based start-up entities.

Email: dcantor@usimmigrationadvisor.com
(D): +1-212-763-0025