A blog about U.S. immigration matters by Paul Szeto, a former INS attorney and an experienced immigration attorney and counsel. Contact Info: 732-632-9888, http://www.1visa1.com/ (All information is not legal advice and is subject to change without prior notice.)

Monday, December 18, 2017

International entrepreneurs may file petitions to enter the U.S., for now

Overseas entrepreneurs may now file petitions to request parole status to enter the U.S. to establish and manage businesses, according to a recent announcement of USCIS.  Upon approval of their petitions, their spouses and children may also enter the U.S.  Further, their spouses may also apply for permission to work in the U.S.  However, at the same time, DHS is also taking steps to cancel this International Entrepreneur Rule.

The International Entrepreneur Rule (IER) was created by the Obama Administration to provide another way for foreign entrepreneurs to invest and establish new businesses in the U.S. Slated to take effect on July 17, 2017 originally, the IER's implementation was halted and suspended by the Trump Administration at the last minute.  The delay and suspension was challenged by a group of the nation's venture capitalists in federal court.  On December 1, 2017, the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke vacated DHS' final rule to delay the implementation of the IER.  

To comply with the federal court ruling, USCIS is accepting applications under the IER.  The IER allows unlimited number of international entrepreneurs to apply for "parole" status to enter the U.S., and use American investments to establish and grow start-up businesses.  Parole is not a visa; it is a discretionary decision made by the U.S. government to allow certain individuals to enter the country, on a case-by-case basis, usually for urgent humanitarian reasons or significant public benefit.  It is only a temporary permission for entrepreneurs and does not confer any permanent resident status or a path to citizenship.   Most importantly, it can be revoked any time in the future. 

Under the IER, eligible startup entrepreneurs include those:

(1) Who have a significant ownership interest in the startup (at least 15 percent) and have an active and central role to its operations;
(2) Whose startup was formed in the United States within the past three years; and
(3) Whose startup has substantial and demonstrated potential for rapid business growth and job creation, as evidenced by proof of significant private financial investments or government grants and awards. 

While DHS is implementing the IER, the department is also simultaneously finalizing a notice of proposed rulemaking (NPRM) seeking to remove the rule.  Such an action aims at formally revoking the IER published by the previous administration.  Entrepreneurs are now faced with a conundrum now. Should they apply for parole status under the IER now, knowing that their status may be revoked in the future?  It is a decision that they should make after considering all relevant factors including their personal circumstances, the nature and needs of their businesses, etc.  Further, entrepreneurs may consider applying for other visa programs such as H-1B, O-1, L-1A, E-2, etc.  When in doubt, they should consult with an experienced immigration attorney to carefully analyze their situation. 

1 comment: