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The Immigration and Nationality Act delegates authority to the Department of Homeland Security (DHS) to decide whether to parole a foreign person into the United States. Parole is a discretionary remedy decided on a case-by-case basis, evaluating the totality of evidence to determine if the foreign person’s presence in the United States will provide a significant public benefit and otherwise merits favorable discretion.

The previous parts of this series on the International Entrepreneur Parole (IEP) program have reviewed the program requirements — who is eligible and what documentation is required. This final part discusses program application procedures — how applicants qualify.

Procedures

              The Role of USCIS

International entrepreneurs seeking parole to enter the United States to have a central and active role in a start-up company that has significant potential for rapid growth and job creation must file an application for IEP with USCIS. The application created for this purpose, Form I-941, Application for Entrepreneur Parole, gathers information required for U.S. Citizenship and Immigration Services (USCIS) to adjudicate eligibility for IEP.

There currently is no published processing time for USCIS to adjudicate an IEP application filed on Form I-941. A previous part in this series discussed the significant documentary burden imposed on applications based on start-up companies funded by private investors. USCIS will need to devote sufficient resources to ensure prompt adjudication of IEP applications to make the program a viable pathway for foreign entrepreneurs.

A pending or conditionally approved IEP does not provide lawful presence in the United States. Accordingly, if an IEP applicant is present in the United States, it is necessary to maintain nonimmigrant status or be otherwise temporarily authorized by USCIS to be present. An individual can proceed with an IEP application while unlawfully present in the United States. Accruing more than 180 days of unlawful presence, however, would create a ground of inadmissibility that could preclude entry to the United States with IEP. Applicants for IEP should be cautioned that even a period of unlawful presence of less than 180 days may be considered a derogatory factor that, on balance, may be a reason for USCIS to refuse parole.

Upon approval of an application, USCIS issues Form I-512L, representing a conditional parole approval with a validity period up to 30 months. Approval of an IEP application and receipt of a Form I-512L parole document does not by itself grant parole to an international entrepreneur. After approval by USCIS, the entrepreneur must take additional steps to be paroled into the United States. If the entrepreneur is present in United States when USCIS conditionally approves the parole application, they must depart and appear at a port of entry to request parole by U.S. Customs and Border Protection (CBP).

              The Role of the Department of State

Individuals outside the United States when applying for IEP will need to provide biometrics, a digital photograph and fingerprints, before their application can be approved. Policy guidelines provided by USCIS suggest that capturing biometrics will be performed at a U.S. consulate abroad. However, at this writing, the process for providing biometrics abroad has not yet been defined.

Individuals outside the United States when IEP is approved by USCIS also will need to attend an appointment at a U.S. consulate to obtain a travel document prior to traveling to a U.S. port of entry to request parole. USCIS has indicated in its policy guidance that the travel document will be issued by the Department of State (DOS) pursuant to its own policies. No procedures have been published by DOS, however, to allow persons conditionally approved for IEP to schedule an appointment or appear at a consulate to obtain a travel document. These details are expected to be announced by DOS in the immediate future.

              CBP Makes the Final Parole Determination

The final discretionary decision to parole any foreign person into the United States is made by CBP. Regardless of whether an IEP applicant is present inside the United States or abroad when USCIS conditionally approves an application and issues Form I-512L, the applicant must appear at a port of entry for a final parole determination by CBP.

According to USCIS policy guidance, it is expected that CBP will “likely” exercise its discretionary authority to grant parole to persons in possession of an IEP approval notice, Form I-512L. Another unknown element at this writing is the scope of CBP review of IEP eligibility. It is possible that CBP will seek to conduct its own IEP determination. As a law enforcement agency inspecting arriving international travelers, however, CBP would not be well-equipped to conduct such an evaluation of business records and an entrepreneur’s ability to perform a central and active role in a start-up company.

It is more likely that CBP will treat Form I-512L much like an Advance Parole document issued by USCIS in connection with an application for adjustment of status from temporary nonimmigrant classification to permanent resident status. In such cases, applicants for adjustment of status in possession of an Advance Parole document are routinely paroled into the United States by CBP after verifying the individual’s application remains pending and there is no new derogatory information that would preclude a grant of parole. A similar policy by CBP for foreign entrepreneurs presenting Form I-512L would be a welcome approach.

Employment Authorization

Once paroled into the United States by CBP, an international entrepreneur is automatically authorized to engage in employment. Such authorization is incident to the parole. This automatic employment authorization under the IEP program is an exception to the general rule that persons paroled into the U.S. based on significant public interest normally must apply for an Employment Authorization Document prior to commencing employment. Given the indeterminant period required by USCIS to adjudicate an IEP application, forgoing the need to wait for a second time for USCIS to adjudicate a separate application for employment authorization is a tremendous benefit.

Renewal of IEP

Parole is granted by USCIS under the IEP program for an initial period of 30 months. International entrepreneurs wishing to extend their parole must file a new Form I-941 before the expiration of their initial 30-month period of IEP.

When re-applying for IEP, applicants must demonstrate that they continue to hold at least 5% ownership interest in the start-up company. In addition to demonstrating that the start-up received the requisite minimum investment funding, the renewal application also must show that the start-up achieved certain required growth benchmarks. There is some flexibility in the evidentiary requirements applicants must produce when seeking to renew IEP for a second interval of 30 months.

To demonstrate that the start-up reached the required benchmarks, it can show it created at least five jobs for U.S. workers. Alternatively, the applicant can show that the start-up reached at least $528,293.00 in annual revenue with at least a 20% annual growth rate. Finally, if neither of the two preceding benchmarks have been reached, the application may produce other reliable and compelling evidence that the start-up company has substantial potential for rapid growth and job creation.

              If Denied Extension of IEP

Applicants who fail to satisfy USCIS that they deserve an extension of IEP have no recourse. There is no legal process for an administrative appeal of the denial of parole. USCIS policy states that no motion for reconsideration will be entertained. Furthermore, as a remedy completely within the discretionary authority of DHS, there is no option for judicial review for abuse of authority under the Administrative Procedures Act.

While the absence of recourse for international entrepreneurs denied an extension of IEP may appear harsh, it is consistent with the completely discretionary nature of parole determinations. There are few due process rights associated with the process for granting, withholding, or rescinding parole. USCIS can terminate IEP at any time, with or without prior notice. There is no requirement for USCIS to send a request for additional information or issue a Notice of Intention to Deny a pending application.

              Additional Entrepreneur Requirements

Individuals granted IEP are required to maintain an income level equal to or greater than 400% of the current federal poverty guidelines. Any material changes in the condition of the start-up enterprise must be reported by the entrepreneur by filing Form I-941 with USCIS. The initiation of any criminal or administrative proceeding by any government, whether federal, state, or local, against either the start-up entity or the entrepreneur is cause for termination of IEP.

              IEP Dependents

The spouse and children of an international entrepreneur may apply for parole to enter the United States, either concurrently or sequentially, by filing Form I-131 with USCIS. Both the spouse and children also must merit favorable exercise of discretion by USCIS after finding a humanitarian need or significant public benefit in granting them parole. USCIS policy recognizes a significant public benefit in permitting family members to accompany an international entrepreneur to encourage entrepreneurial activities in the United States.

Once paroled into the United States, the spouse of an international entrepreneur may apply for employment authorization by filing an application with USCIS. Unlike a principal entrepreneur granted IEP, spouses are not authorized to engage in employment incident to their parole and must wait to receive an Employment Authorization Document from USCIS prior to beginning employment. While the spouses of persons granted IEP may be employed by the start-up enterprise, their employment would not be counted to satisfy the minimum five workers as a benchmark for renewing IEP. Children paroled to accompany a principal granted IEP are not authorized to engage in employment.

Please contact a Jackson Lewis attorney if you have any questions.

The first installment in this series discussing the International Entrepreneur Parole (IEP) program identified the challenge and a potential solution for foreign entrepreneurs to legally enter the United States to develop a business concept and outlined the detailed program requirements. This part of the series will examine the specific documentary requirements necessary to satisfy those requirements.

Assembling Documents

The IEP program imposes significant documentary requirements. The governing regulations require assembling documents not only from the foreign entrepreneur applying for parole. Investors in the start-up company where the entrepreneur will play a central and active role also bear a significant burden to document their investment history in completely unrelated enterprises. The following discussion examines each of these requirements.

              Entrepreneur

The IEP program requires foreign entrepreneurs to have a qualifying ownership interest of at least 10% in the start-up company and be able to demonstrate they will play a central and active role in the start-up. Ownership may be proved by assembling commonly available establishment documents such as articles and certificate of incorporation, organizational minutes in which share distribution is recorded, or the membership agreement of a limited liability company. The central role to be actively performed by the international entrepreneur may be described in a detailed job description. But these, alone, are insufficient documents to support a successful IEP application.

The regulations governing the documentary requirements for IEP represent a significant departure from those that apply to many categories of nonimmigrant worker visa categories. Regulations governing certain nonimmigrant classifications require only a detailed statement from an employer filing a petition explaining the factual basis of the beneficiary’s eligibility for the visa category. While such a detailed statement should be sufficient in most cases, U.S. Citizenship and Immigration Services (USCIS) has become ever more aggressive in its demands for additional documentary evidence to corroborate the petitioner’s statement. Even highly detailed, uncontroverted statements by petitioners routinely receive demands from USCIS for documents to corroborate such statements. The propriety of such demands is beyond the scope of this discussion. However, the demand for corroborating documents is entirely consistent with the regulations and policy promulgated to administer the IEP program.

Additional documents that may be presented to corroborate the central and active role to be performed by the entrepreneur may be drawn from a wide range of sources. These include:

  • Letters from government agencies, business associations, and qualified investors.
  • News articles about the start-up and the role of the entrepreneur may be provided.
  • Documentation demonstrating participation in an established business accelerator, as well as evidence of prior start-up successes by the entrepreneur.
  • Degrees or documents demonstrating key experience or knowledge of the entrepreneur, such as patents or other recognition for achievements.

These examples are neither mandatory nor exclusive. Any one or combination of these documents, as well as any other probative documentation, may be provided to corroborate the applicant’s statement describing the central and active role to be performed by the entrepreneur.

              Start-Up Enterprise

Demonstrating that a company qualifies as a start-up enterprise for purposes of the IEP program is the least arduous requirement. Documentation common to most businesses should be readily available. Organizational documents used to demonstrate the entrepreneur’s minimum ownership participation such as articles and certificate of incorporation, organizational minutes in which share distribution is recorded, or the membership agreement of a limited liability company also can be produced for this purpose. These documents, along with tax and other financial records should conclusively demonstrate that the company was not established greater than five years before the IEP application is filed.

              Qualified Investment, Award, or Grant

                            Private Investment Source

Documenting the investment enterprise has received private investment funds from a qualifying investor imposes a significant documentary burden. Foreign entrepreneurs applying for parole are required to prove the investor’s U.S. citizenship or resident status along with their investment history. For both elements, the applicant — who is not the investor — will be required to request documents from the investor that includes both personal and financial records.

Individual investors will need to be willing to provide proof of their U.S. citizenship, such as a birth certificate or passport identity page or, for permanent residents, a copy of their Permanent Resident Card (aka “green card”). Where investment funds are provided through a business entity, the company must be not only organized under a U.S. jurisdiction but also majority-owned and controlled by U.S. citizens or permanent residents. Organizational documents illustrating place of establishment and ownership of the company making the investment as well as the citizenship or resident status of its owners will be required.

Provided that the company is majority owned and controlled by U.S. citizens or residents, it is not necessary to document the provenance of the investment funds. It is not necessary to demonstrate that more than 50% of the capital is from a U.S. source. Applicants are required, however, to demonstrate that the funds are not derived from unlawful activity.

In practice, demonstrating the legitimate source of investment funds may make it necessary to trace them to their source, much like is currently required for immigrant investors under the EB-5 Immigrant Investor Program. There are troubling implications of such a documentary burden, however, for a temporary parole program. First, the effort of tracing funds to their source to obtain the benefit of permanent resident status as an immigrant investor under the EB-5 program may be justified, whereas completing the exercise for a third party — the foreign entrepreneur — to gain a temporary, 30-month parole may cause investors to hesitate. Second, the time taken by USCIS to evaluate the voluminous documentation required for EB-5 classification currently extends to years. A similar waiting period may be impractical for an entrepreneur seeking to capitalize a new business concept through the IEP program.

The most significant demand international entrepreneurs will need to make on their investors is proof they have a successful track record of investing. Investors must be able to satisfy the procrustean requirements of having made previous investments equal to or greater than $633,952.00 that 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%. To do so, qualifying investors must be willing to produce detailed financial records relating to completely unrelated companies. For example, bank records, equity agreements, capitalization records, audited financial statements, or similar documents will be needed. Employment creation can be documented by producing, inter alia, Forms I-9, payroll records, and tax records. These documentary requirements, coupled with the need to prove the funds do not derive from unlawful sources, create a documentary burden similar to that of the EB-5 immigrant investor category, albeit, with lower capital requirements.

Notably, the application an international entrepreneur must file with USCIS to obtain parole requires the applicant to swear under oath to the accuracy of documents and information submitted. A significant volume of the documents to be produced will come from others over whom the applicant has no control. It remains unclear what steps the applicant must take to verify accuracy of such third-party documentation.

                            Government Awards or Grants

In contrast to the documentary burden of demonstrating that investment funds from private individuals satisfy the requirements of the IEP program, documenting government awards or grants should be much simpler. Letters from the awarding or granting government may be produced to demonstrate both the source and the amount of the funds provided. Bank records of the start-up company may be provided to document receipt of the funds.

                            Documentation Alternatives

If the start-up company only partially satisfies either the individual or government funding requirements, it still may be possible for the entrepreneur to qualify for IEP. Where funding falls short of the regulatory minimum, the entrepreneur must produce alternative reliable and compelling evidence that the start-up has substantial potential for rapid growth and job creation. There is no specific, mandatory list of alternative documents. Instead, guidelines provided by USCIS recognize that the type of documentation may vary depending on the nature of the business. Examples of appropriate documentation includes evidence of the number of users of a product or customers for a service. Revenue generated or additional investment attracted also may demonstrate the start-up’s potential for growth.

Intangible factors also will be considered by USCIS as proof of the potential for rapid growth. Evidence of the social impact, national scope, or positive local effects may be sufficient to demonstrate growth potential.

These factors are intended to be illustrative rather than comprehensive. Other relevant and probative evidence may be considered to successfully argue that the significant potential for rapid growth may overcome a deficiency in the funding requirements for the start-up.

Certain funding sources will not be considered by USCIS when evaluating whether an applicant has proved sufficient qualifying investment funds have been received by the start-up. Neither non-monetary contributions nor foreign funds are recognized as contributing to the qualifying investment amount.

              Significant Public Benefit

Parole of any kind must be based on either a humanitarian need or a significant public benefit. There is no definition in law or regulation to provide guidance for when circumstances justify parole as a significant public benefit. The IEP rules, however, describe circumstances in which the presence of an international entrepreneur in the United States with a central and active role in a start-up company with substantial potential for rapid growth and job creation may create such a benefit.

Many of the factors identified by USCIS policy that may be used to demonstrate an international entrepreneur will play a central and active role in a start-up also may support a finding that the individual’s presence in the United States will provide a significant public benefit. To satisfy this requirement, an IEP applicant may present records of additional investor or government funds from any source, support letters from government entities, business associations, news articles favorably covering the start-up or the entrepreneur’s role in it, participation in a reputable business accelerator, the entrepreneur’s educational degrees or patents, evidence of one or more prior roles by the applicant in successful start-ups, and any other probative material.

The final installment in this series will review the procedures for requesting IEP.

Please contact a Jackson Lewis attorney if you have any questions.

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 Challenge

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 Response

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.

Entrepreneur

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.

Start-Up Entity

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 Source

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.

                            Individual Investors

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.

On February 4, 2022, the House of Representatives passed the American Creating Opportunities for Manufacturing, Pre-Eminence in Technology, and Economic Strength Act  (known as the America COMPETES Act of 2022). The bill is aimed at “outcompeting China and the rest of the world in the 21st century.” Title III of the COMPETES Act adds immigration provisions to the bipartisan U.S. Innovation and Competition Act that was passed in the Senate in June 2021.

The immigration provisions in Title III include the creation of a W nonimmigrant visa for entrepreneurs with ownership interest in a start-up entity. Title III also provides STEM Ph.D. graduates seeking to work in the United States in a field related to such degree a direct path to Legal Permanent Residence (LPR) status.

W Nonimmigrant Visa

Title III creates a W nonimmigrant visa for entrepreneurs with at least a 10% ownership interest in a start-up that was formed in the 5-year period preceding application. Like the International Entrepreneur Rule (IER), the W visa has eligibility requirements regarding levels of investment from qualified investors and a showing that the applicant has knowledge and skills that would substantially assist the start-up. The W visa would allow an initial validity period of three years with the possibility of 3-year extensions and 1-year extensions if investments and job creation meet certain standards. One important difference from the IER is that the W visa allows nonimmigrants to have dual intent, meaning that W nonimmigrants would be able to apply for LPR if the enterprise meets additional investment and job creation levels. Unlike the proposed W nonimmigrant visa, there is no direct route to LPR from IER status, as IER admission to the United States is only a type of parole.

Benefits for STEM Ph.D.s

Foreign nationals with Ph.D.s STEM degrees, whether from the United States or foreign equivalent degrees, would be exempted from the annual green card limits. This would allow Ph.D.s to circumvent the immigrant visa backlog that so many Ph.D.s, especially those from India and China, face.

Applications for the W nonimmigrant visa, the W immigrant visa and the STEM immigrant visa would require an additional $1,000 supplemental fee that will be used to fund scholarships for U.S. STEM students.

The immigration provisions in the House bill could be transformative for entrepreneurs and those with Ph.D.s in STEM fields. But it must be reconciled with the Senate version. If the immigration provisions make it through that process and are passed by the Senate, the United States would take a big step toward increased competitiveness for foreign talent with other countries that make entry and permanent residence for select individuals much easier. Passage of the bill by the Senate would also be significant, as Congress has not passed major immigration reform in decades.

Jackson Lewis attorneys will continue to follow the progress of this bill and provide updates as they become available.

New dollar eligibility criteria for investment amounts, qualifying investors, and re-parole considerations under the International Entrepreneur Rule (IER) will take effect on October 1, 2022.

The Biden Administration relaunched the IER in May to grow the economy through job creation. The IER makes it possible for certain promising start-up founders and entrepreneurs to come to the United States through a discretionary parole program and begin growing their companies.

The IER has specific dollar eligibility criteria for investment amounts, qualifying investors, and re-parole considerations. Published in 2017, the IER stated that these amounts would be automatically adjusted every three years by the Consumer Price Index for All Urban Consumers and posted on the USCIS website. On September 13, 2021, the first adjustments were published in the Federal Register.

The new numbers, listed on the USCIS website, will take effect on October 1, 2022, and are as follows:

  • If relying on an investment from a qualifying investor, the amount is increasing from $250,000 to $264,147.
  • If relying on a government award or grant, the amount is increasing from $100,000 to $105,659.
  • The revenue amount for consideration of re-parole is increasing from $500,000 to $528,293.
  • Qualifying investors will need to show aggregate investments of no less than $633,592 (rather than $600,00) over five years. They also will need to show that at least two of those entities created five jobs or generated at least $528,293 (instead of $500,000) in revenue.

The increases are approximately 5.6 percent overall.

If you have questions about the IER parole program, Jackson Lewis attorneys are available to assist.

The Biden administration is breathing life into the International Entrepreneur Rule (IER). It has announced that the IER will be launched anew, because it will “strengthen and grow our nation’s economy through increased capital spending, innovation, and job creation.”

Although there were stops and starts, the IER was never actually eliminated by the Trump administration. Instead, it was criticized and largely ignored.

The purpose of the IER is to improve the nation’s economy by making it possible for certain promising start-up founders and entrepreneurs to begin growing their companies in the United States. The IER amends the regulations on discretionary parole to do so.

A qualifying entrepreneur will be paroled into the United States for an initial 30-month period (with a possible extension) and will have work authorization incident to status. To be eligible, an applicant:

  • Must have a substantial (at least 10 percent) ownership interest in the start-up; and
  • Must have an active and central role in the operations and future growth.

The entity:

  • Must have been recently created (within five years of the application); and
  • Must prove that it has significant investment from qualified and established U.S. investors (at least $250,000) or the receipt of significant awards or grants from federal, state, or local governments (at least $100,000).

USCIS is ready for applications and the administration is planning a public relations campaign, including information sessions and outreach activities, to publicize the IER opportunity. The regulations can be found at 8 CFR 212.19 and the Application for Entrepreneur Parole form is on the USCIS website.

More than 50 percent of start-ups in the United States with a $1 billion valuation were founded by at least one immigrant. The United States is a popular destination for start-up founders, but many other countries (including Canada, the United Kingdom, China, Japan, Israel, Germany, Australia, and New Zealand) are competing to entice entrepreneurs to their shores. Other countries have sought to take advantage of the Trump administration’s criticisms of the IER and less hospitable approach to legal, employment-related immigration. Reaffirming the IER is an important step to the United States meeting the competition.

If you have any questions about the IER, Jackson Lewis attorneys are available to assist you in strategizing and submitting applications.

While the Trump Administration is making it more difficult and less attractive for entrepreneurs to start their businesses in the United States (in the name of “Buy American and Hire American”), other countries are rolling out the welcome mat to entrepreneurs.

In May 2018, the Administration proposed a rule to remove President Obama’s International Entrepreneur Rule (IER). While the IER is still in effect due to litigation brought by the National Venture Capital Association, no applications have been granted under the IER. The Administration likely will eliminate the IER soon after completing review of the public comments it received.

Other countries, including the United Kingdom, China, Japan, Israel, Germany, Estonia, Australia, and New Zealand, are taking advantage of the attitude change in the U.S., offering start-up visas with eligibility requirements similar to the once-touted IER.

For instance, in Canada, founders of start-ups can become permanent residents in as little as 12 months. The key requirement is sponsorship by one of a group of pre-approved Canadian investor organizations. While the application is being reviewed, the entrepreneur may come to Canada and start working in temporary status. Mezyad Almasoud, a Kuwaiti national with a Yale University degree, thought he had “failed” when he realized he would not be able to stay in the United States to build his technology start-up. He moved his family and his business to Vancouver, where he is hiring Canadians.

The United Kingdom will launch its start-up visa in the spring of 2019. There, too, the entrepreneur must be endorsed by a university or an approved business sponsor. The United Kingdom plans to double the number of Exceptional Talent visas available in order to attract more highly skilled individuals.

Israel is offering a 24-month innovation visa that can lead to a special Expert Visa (extendable for another five years) with such perks as a $20,000 relocation bonus and Hebrew lessons.

Australia has a Venture Capital Entrepreneur process for people who have venture capital funding from members of the Australian Venture Capital Association Limited.

Finally, New Zealand offers an Entrepreneur Work Visa that can lead to residence in three years.

Same-sex couples and unmarried couples also are getting a warmer welcome in other countries, which are offering work permits to partners of skilled workers. This is happening just as the United States is cutting down on work authorization for spouses by moving toward eliminating H-4 EADs and denying visa to same-sex partners of U.N officials.

Bipartisan legislation has been introduced in Congress to create a Start-Up visa. To date, those efforts have stalled.

Jackson Lewis will continue to follow Congressional efforts and the final fate of the IER.

On May 29, 2018, DHS published a proposed rule to remove the International Entrepreneur Parole Program (IER). This was hardly unexpected.

Since January 25, 2017, when President Donald Trump issued the Border Security and Immigration Enforcement Improvements executive order, it has been clear that the Administration would seek to eliminate the IER as being an inappropriate use of DHS parole authority. In July 2017, DHS attempted to delay the effective date of the rule until March 14, 2018, while it developed its proposal to eliminate the rule. On December 1, 2017, the U.S. District Court for the District of Columbia in National Venture Capital Association v. Duke ruled that DHS would have to continue to accept IER applications. To date, DHS has received 13 applications and none of the applicants have been granted parole.

DHS has justified the removal of the IER on several grounds:

  • Parole authority is not appropriate for implementing a complicated program for entrepreneurs and business start-ups that would be best implemented by Congress;
  • Entrepreneurs should use existing legislative vehicles such as the E-2, E-5, or National Interest Waiver programs to the extent possible; and
  • DHS should not use its limited resources to implement a policy does not support Trump’s chief objective of protecting U.S. workers.

Despite the fact that no IER applications have been approved, DHS has proposed various options for the termination of the program. Its preferred option is to simply end parole on the effective date of the final rule. There are also proposed provisions for those who have pending applications. These individuals may withdraw their applications and have their fees returned or leave their applications in place and argue that they are entitled to discretionary parole even without the IER.

Elimination of the IER was set out in the DHS’ Spring 2018 Regulatory Agenda, which also included:

  • Establishing electronic registration for the Cap H-1B program;
  • Changing the focus of the H-1B program to the “best and brightest” and protecting the interests of U.S. workers;
  • Eliminating H-4 EADs;
  • Updating the USCIS fee schedule;
  • Modernizing the EB-5 Immigrant Investor Program;
  • Reforming Practical Training programs for students; and
  • Mandating more electronic filings.

Eliminating H-4 EADs is next up. That proposed new rule is expected in June 2018, followed by the Cap H-1B electronic registration rule in July 2018.

Please contact a Jackson Lewis attorney if you have any questions about this and other developments.

 

The DHS is giving with one hand and taking with the other. In response to the December 1, 2017 federal court ruling in National Venture Capital v. Duke, the DHS is complying and implementing the International Entrepreneur Rule parole program (IER).  At the same time, the DHS is in the final stages of publishing a notice of proposed rulemaking to eliminate the program.

The requirements for IER eligibility are:

  • The entrepreneur must have a substantial ownership interest in the start-up entity
  • The entity must have been created within the past 5 years
  • The entrepreneur must have a central and active role in the entity and be well-positioned to substantially assist with the growth and success of the business
  • The entrepreneur will provide a significant public benefit to the U.S. by showing:
    • Significant capital investment from qualified investors;
    • Significant awards or grants for economic development, research and development or job creation from a government entity; or
    • Overall additional and compelling evidence of the entity’s substantial growth potential

The application process for the IER is:

  • File Form I-941, Application for Entrepreneur Rule, with USCIS
  • Once approved, the entrepreneur must visit a U.S. Consulate abroad to obtain travel documentation
  • In conjunction with the Form I-941, the entrepreneur may submit Advance Parole applications (Forms I-131) to allow their spouses and unmarried children to accompany them to the United States
  • Upon entry into the U.S., the spouse of the entrepreneur may apply for an Employment Authorization Document by filing a Form I-765
  • The forms will be filed at the USCIS Dallas Lockbox facility

How long it will take the USCIS to process these applications is unknown. And what if any grandfathering provisions there will be is yet to be seen.  Regardless, depending upon an individual entrepreneur’s specific circumstances, it may be advisable to take advantage of the current window of opportunity prior to the elimination of the program.

If you need help assessing your situation with regard to the IER, please reach out to the Jackson Lewis attorney. We will continue to monitor developments.

The Trump Administration rule delaying the International Entrepreneur Rule (IER) until March 14, 2018, had been implemented without following the necessary Administrative Procedures Act (APA) Notice and Comment Period regulations and was therefore illegal, a federal court has found.

The Administration has not yet commented on the court’s ruling, but likely will appeal the decision.

Beginning July 17, 2017, the Obama-era IER was to start allowing promising entrepreneurs to come or remain in the U.S. to expand the economy by growing their companies. To be eligible, applicants/entrepreneurs had to prove the potential of their start-ups based upon qualified investments and other compelling evidence. Upon proving significant potential, the applicant could be granted parole and work authorization for up to five years. The IER amended the regulations on discretionary parole by adding provisions that would allow the use of parole on a case-by-case basis for entrepreneurs who can “demonstrate through evidence of substantial and demonstrated potential for rapid business growth and job creation that they would provide a significant public benefit to the United States.” The additional regulation was to be published at 8 CFR 212.19.

This merit-based approach to using the parole authority would seem to be aligned with President Donald Trump’s general desire for a merit-based approach to immigration. However, Trump is also focused on strict enforcement of the immigration laws and eliminating the expansion of discretionary benefits such as parole.  Just before the IER was to go into effect, the Administration introduced the Delay Rule. Not only did the Delay Rule delay the start date of the IER to March 14, 2018, but the Administration noted at the time that it was likely to rescind the IER altogether.

National Venture Capital Association, along with two foreign entrepreneurs, filed suit in the U.S. District Court in D.C. to force the implementation of the IER. “The controversy boil[ed] down to two competing rules,” District Judge James E. Boasberg observed. Because the Delay Rule had been implemented without following the necessary APA regulations, Judge Boasberg found it was illegal.

The Administration argued that the costs involved and the confusion that would be engendered by implementing a rule they planned to rescind constituted “good cause” for skipping the Notice and Comment period. But the court disagreed, particularly noting the government could not rely on its own delay of close to six months from January 20, 2017, until July 2017, to argue “good cause.”

The Administration’s next steps are unknown. It might not be difficult for the Department of Homeland Security to start the program.  Staff training would be required but an IER Form (Form I-941) has already been created although not implemented and changes have already been formulated although not implemented to Form I-9 and the Lists of Acceptable Documents to account for the IER.

Jackson Lewis will continue to provide updates.