USCIS and DOH Propose New Rule For International Entrepreneurs
On August 26 th, 2016 the United States Citizenship and Immigration Services (USCIS) announced a new initiative for international Entrepreneurs. In collaboration with the Department of Homeland Security (DOH), the proposed rule would provide a temporary pathway for foreign national Entrepreneurs who have start-up initiatives within the United States. 1
The essence of the proposed rule further supports USCIS and DOH efforts to propel new investment and boost job creation within the United States. For international Entrepreneurs, venture capitalists, and skilled workers alike, such high-level efforts seem promising. Under the proposed rule, which will be accepting public comments for 45 days from the date of publication, it provides that eligible candidates must satisfy the following criteria:
- Have significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
- Have a startup that 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.
When will the proposed rule become effective?
The timeline of the Federal Rulemaking process may vary depending on the volume and validity of public comments, as well as the content and scope the proposed rule. In fact, the President, Office of Information & Regulatory Affairs (OIRA), and Congress may all need to approve the final rule it before it becomes effective.
The Congressional Review Act requires that new rules be sent to Congress and the Government Accountability Office for review before they can take effect. "Major rules" requiring OIRA review must be made effective at least 60 days after the date of publication in the Federal Register. 2
If OIRA is not involved, once a final version of the rule is published it goes into effect no less than thirty days after the date of publication in the Federal Register.
I am an international Entrepreneur; does this mean I can get a visa?
The proposed 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 DOH has discretion to provide "parole" to foreign nationals on a case-by-case basic. This proposed rule would extend this authority to eligible international Entrepreneurs. If granted parole, the applicant will be approved for a temporary period of stay for up to two (2) years in the United States. This two (2) year period may be extended for an additional 3-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 are suitable for successful international Entrepreneurs - notably the O-1, E-2 or EB category visas.
It is important to note that under the proposed rule, Entrepreneurs Parolees are unable to apply to adjust or change status in the United States. In other words, the visa application should be submitted 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.
The content above is written in the professional opinion of the author and does not represent any formal legal advice