Certain foreign entrepreneurs have a new pathway available to enter the United States to develop a business concept through a start-up company. Entrepreneurs who will have a central and active role in a start-up company that has attracted private investment or government funding may benefit from the International Entrepreneur Parole (IEP) program. While complex and imperfect, the IEP program creates a remedy for certain foreign entrepreneurs who can demonstrate potential for rapid business growth and job creation.
This is the first of a series of three commentaries examining the legal basis for the IEP, reviewing the program requirements, discussing the necessary documentary evidence, and describing application procedures.
The current immigration selection system used in the United States was created by the Immigration Act of 1990. The provisions of that late 20th century Act often fail to serve the economic needs of the third decade of the 21st century. Immigration options for foreign professionals or entrepreneurs are extremely circumscribed by outdated quota limitations of the nonimmigrant H-1B visa category, the unavailability of temporary immigration options for many entrepreneurs, and the lengthy agency processing time currently required for most immigrant visa categories. These limitations leave foreign innovators in many cases without a visa option to enter and remain in the United States, while actively participating in the development a business concept.
The recognized need for reform of the legal immigration system is effectively precluded in the highly charged political environment resulting from illegal immigration. The IEP program was created as an executive branch initiative in the absence of legislative action.
The Immigration and Nationality Act (INA) delegates to the executive branch of the federal government a wide range of discretionary authority to implement its provisions. The Department of Homeland Security (DHS) has authority, pursuant to INA 212(d)(5), to parole foreign persons into the United States for urgent humanitarian reasons or significant public benefit.
The parole authority provided by 212(d)(5) does not confer a particular status or even a right to remain in the United States. Instead, a grant of parole is a discretionary determination by DHS that an individual’s presence in the United States will satisfy a humanitarian need or significant public benefit.
Finding a significant public benefit in the entry to the United States by foreign entrepreneurs who will be instrumental in facilitating rapid growth and job creation by a start-up company, DHS published the IEP regulations on January 17, 2017, creating a framework for granting parole to such persons. The regulation suffered a lengthy and complicated path to full implementation. On May 29, 2018, under a new presidential administration, DHS published a proposed rule to rescind the IEP. Subsequently, on May 11, 2021, under the current presidential administration, DHS withdrew its proposed rescission of the IEP regulation, clearing the way for its full implementation.
The federal agency within DHS with responsibility for adjudicating applications for benefits is U.S. Citizenship and Immigration Services (USCIS). On March 10, 2023, USCIS published new chapters in its Policy Manual with detailed criteria, required evidence, and procedures used to seek eligibility for IEP.
The regulations promulgated by DHS and the policy for their implementation outlined in the USCIS Policy Manual combine to create a complex set of rules with a significant amount of documentary evidence required for a successful application. Together, these rules limit the number of international entrepreneurs who may benefit from the program. Given the discretionary nature of permission to enter and remain in the United States based on parole authority and the documentary requirements of the IEP program, caution with its use is appropriate. For those who satisfy the requirements, however, the IEP program creates a new, viable option to enter the United State to develop a business concept.
Requirements for International Entrepreneur Parole (IEP)
There are four groups of criteria set forth in the regulations creating the IEP program. These requirements apply to the entrepreneur, the start-up enterprise, the investment sources, and the need to demonstrate a significant public benefit.
Foreign entrepreneurs seeking parole to develop a business concept in the United States must be able to demonstrate they will have a central and active role in the start-up company. An entrepreneur must be well-positioned to substantially assist the growth and success of the start-up. The individual must demonstrate knowledge, skills, education, or experience that is key to developing the business concept.
The entrepreneur must have a substantial ownership interest in the start-up company. In this context, this means that the entrepreneur must hold a minimum 10% ownership interest at the time that USCIS adjudicates the application for IEP. After USCIS approves the application, the ownership interest can diminish to less than 10% during an initial period of 30 months. However, the entrepreneur’s ownership interest in the start-up cannot fall below 5%.
Up to three international entrepreneur owners may participate in a qualifying start-up. Each entrepreneur would be required to hold a minimum 10% ownership interest in the entity at the time USCIS adjudicates each IEP application.
An international entrepreneur can be both an owner and an employee of the start-up company. Stated differently, the entrepreneur can perform a central and active role by providing executive strategic vision and leadership, through technological expertise, or both.
A qualifying start-up company can be organized in any form of business entity, such as a corporation or limited liability company. The start-up must be conducting business in United States and may engage in virtually any legal activity, except trading in securities or other financial instruments.
To qualify as a start-up, the company cannot be formed more than five years before the IEP application is filed with USCIS. The start-up must be able to demonstrate potential for rapid growth and job creation. Importantly, the start-up must have received qualifying investment funds within the 18-month period before the parole application is filed. The minimum investment amount depends on the source of the investment funds.
Investment funds in a start-up enterprise that will support a successful IEP application must be derived from specific sources. There are three possibilities. These include certain individual investors, government awards or grants, or a combination of either individual or government funds plus compelling evidence of substantial potential for rapid growth.
Qualifying investors include U.S. citizens, permanent residents, or a company in the United States majority-owned by U.S. citizens or permanent residents. However, citizenship or resident status, alone, is insufficient to demonstrate that an individual or group of individuals are qualifying investors to support an IEP application.
Qualifying investors must be able to demonstrate that they have regularly made investments in start-up enterprises during the five-year period before the application for IEP is filed. Regulations governing the IEP process mandate certain minimum investments in start-ups must have been made previously by the investor.
The required amount is adjusted at three-year intervals based on the Consumer Price Index (CPI). As a result, the investment minimums described throughout the IEP regulations are not expressed as round numbers. For example, to qualify as an investor, an individual or company currently must be able to demonstrate previous investments equal to or greater than $633,952.00. This minimum investment amount must have included at least two start-ups each of which created at least five jobs or generated at least $528,293.00 in revenue with average annualized growth equal to or greater than 20%.
The minimum individual investment in a start-up company is $264,147.00. These funds must be received by the start-up within the 18-month period before the application for IEP is filed.
Certain investment funds do not qualify to be counted toward the required IEP minimum. These include funds contributed by the entrepreneur or the entrepreneur’s family, foreign source funds, funds from certain individuals or companies that engaged in violations of securities laws, or unlawfully gained funds.
The exclusion of funds contributed by a foreign entrepreneur from the minimum investment requirement does not preclude payment of such funds into the start-up company. Indeed, the entrepreneur is required to hold a minimum 10% ownership in the company. However, the IEP program is structured to value the entrepreneurs’ expertise more than their cash. The entrepreneur can contribute intellectual property or technical skill in exchange for an ownership interest.
Government Awards or Grants
A start-up company may receive funds from certain government sources, rather than from individuals. Qualifying funds may come from federal, state, or local government. Funds dedicated to economic development, research, or job creation may qualify as investment funds for an IEP start-up.
The minimum government award or grant needed is $105,659.00. As with individual investments, funds must be received within the 18-month period before an IEP application is filed.
Alternative Funding Option
It is possible for an international entrepreneur to be excused from the minimum funding requirements if funds received from qualifying investors or government sources only partially satisfy the usual criteria. To qualify for this exception, the entrepreneur must provide other reliable and compelling evidence that the start-up has substantial potential for rapid growth and job creation.
Significant Public Benefit
There is no statutory or regulatory definition of circumstances establishing a significant public benefit. Instead, DHS makes discretionary determinations on a case-by-case basis in view of the totality of the circumstances surrounding a given request for parole. The significance of this completely discretionary, vaguely defined requirement will be further explored in the next part of this series addressing documents to be assembled to support an IEP application.
Please contact a Jackson Lewis attorney if you have any questions.