On July 21, 2023, the Department of Homeland Security (DHS) announced a final rule, which will be officially published on July 25, 2023, that will provide eligible employers filling out the Employment Eligibility Verification Form I-9 an optional alternative to the in-person physical document examination method that employers have followed as part of the Form I-9 process. DHS explained, “This rule responds to lessons learned during the COVID-19 pandemic, which demonstrated the substantial practical benefits of an optional alternative to the physical documentation examination procedures required by the employment eligibility verification regulations.”

Only employers who are enrolled, and participating in good standing, in E-Verify, will be eligible to use this optional alternative I-9 process.

In addition to the requirement that employers use E-Verify, the optional alternative verification process requires the following to occur within three business days of the first day of employment:

  1. The employee must transmit a front and back (if the document is two-sided) copy of the identity and employment authorization documentation to the employer;
  2. The employer must examine the copies of the Form I-9 documentation or an acceptable receipt to ensure that the documentation presented reasonably appears to be genuine;
  3. The employer then must conduct a live video interaction with the individual who must present the same documentation to ensure that the documentation reasonably appears to be genuine and related to the individual;
  4. The employer will then indicate on the Form I-9, by completing the corresponding box (that will be on the updated Form I-9), that an alternative procedure was used to examine documentation to complete Section 2 or for reverification, as applicable; and
  5. The employer must retain, consistent with applicable regulations, a clear and legible copy of the documentation (front and back, if the documentation is two-sided).

In the event of a Form I-9 audit or investigation by a relevant federal government official, the employer must make available the clear and legible copies of the identity and employment authorization documentation presented by the employee for document examination in connection with the employment eligibility verification process.

The new rule also provides relief for certain employers who completed I-9 forms virtually during the COVID-19 pandemic. Employers who were participating in E-Verify and created cases for employees whose documents were examined virtually during COVID-19 flexibilities period (March 20, 2020, to July 31, 2023) may choose to use the new alternative procedure starting on August 1, 2023, to satisfy the physical document examination requirement by August 30, 2023. Employers should not create a new case in E-Verify. This accommodation is available to employers who were participating in E-Verify during the COVID-19 pandemic. Employers who were not enrolled in E-Verify during the COVID-19 flexibilities must complete an in-person physical examination by August 30, 2023.

A qualified employer does not need to use the alternative procedure, but if a qualified employer chooses to offer the alternative procedure to new employees at an E-Verify hiring site, that employer must do so consistently for all employees at that site, without discrimination. However, a qualified employer may choose to offer the alternative procedure for remote hires only but continue to apply physical examination procedures to all employees who work onsite or in a hybrid capacity, so long as the employer does not adopt such a practice for a discriminatory purpose or treat employees differently based on a protected characteristic, i.e., their citizenship, immigration status, or national origin. See 8 U.S.C. 1324b(a)(1).22 Under no circumstances can employers unlawfully discriminate, such as by deciding who is eligible for the alternative procedure based on a protected characteristic.

Employers must adopt the virtual I-9 process in a non-discriminatory manner. Qualified employers must retain clear and legible copies of all documentation presented by the employee seeking to establish identity and employment eligibility for the Form I-9 through the alternate procedures. On the other hand, E-Verify employers who do not apply the virtual I-9 procedures are only required to retain a photocopy of the required documents with an employee’s Form I-9.

New Form I-9 and Form Instructions:

In addition to the final rule on optional alternatives to in-person document examination, DHS also announced a new version of Form I-9, Employment Eligibility Form, which will be officially published on July 25, 2023, to be consistent with DHS final rule. The new form introduces certain changes including a checkbox to indicate that an employee’s Form I-9 documentation was examined using a DHS-authorized alternative procedure.

The new version of Form I-9 [with a version date of “(Rev. 08/01/23)”] will be available for use from August 1, 2023. Employers may use the current version of Form I-9 (Rev. 10/21/19) until October 31, 2023. After October 31, 2023, the prior version of Form I-9 will be obsolete and no longer valid for use. Beginning November 1, 2023, employers who fail to use Form I-9 (Rev. 08/01/23) may be subject to all applicable penalties.

The new Form I-9 will contain two sections and two supplements:

  1. Section 1 of the form continues to collect identifying information about the new hire and requires the employee to attest whether they are a U.S. citizen, noncitizen national, lawful permanent resident, or noncitizen authorized to work in the United States.
  2. Section 2 of the form continues to collect identifying information about the employer and information regarding the employee’s identity and employment authorization.
  3. Supplement A, Preparer and/or Translator Certification for Section 1 (formerly at the bottom of Section 1), is completed when employees have preparers and/or translators assist them in completing Section 1 of Form I-9.
  4. Supplement B, Reverification and Rehire (formerly Section 3), is primarily used to verify the continued employment authorization of the employee and for other changes.

U.S. Citizenship and Immigration Services (USCIS) will implement certain changes on the newly updated Form I-9 and form instructions, including the following:

Changes to the Actual Form I-9:

  1. Reduces Sections 1 and 2 to a single-sided sheet. While the new form does not remove any previous fields, it merges multiple fields into fewer fields when possible.
  2. Moves the Section 1 Preparer/Translator Certification area to a separate, standalone supplement (Supplement A).
  3. Moves the Section 3 Reverification and Rehire area to a separate, standalone supplement (Supplement B) for use in a rehire or reverification situation.
  4. Removes use of “alien authorized to work” in Section 1 and replaced it with “noncitizen authorized to work.” USCIS has also clarified the difference between “noncitizen national” and “noncitizen authorized to work.”
  5. Ensures the form can be filled out on tablets and mobile devices.
  6. Removes certain features to ensure the form can be downloaded easily. This also removes the requirement to enter “N/A” in certain fields.
  7. Updates the notice at the top of the Form I-9 that explains how to avoid discrimination in the Form I-9 process.
  8. Revises the Lists of Acceptable Documents page to include some acceptable receipts, as well as guidance and links to information on automatic extensions of employment authorization documentation.
  9. Adds a box that eligible employers must check if the employee’s Form I-9 documentation was examined under a DHS-authorized alternative procedure rather than by physical examination.

Changes to Form I-9 Instructions:

  1. Reduces length of instructions from 15 pages to 8 pages.
  2. Adds definitions of key actors in the Form I-9 process.
  3. Streamlines the steps each actor takes to complete their section of the form.
  4. Adds instructions for use of the new checkbox for employers who choose to examine Form I-9 documentation under an alternative procedure.
  5. Removes the abbreviations charts and relocates them to the M-274, Handbook for Employers: Guidance for Completing Form I-9.

DHS further clarifies that, employers do not need to complete the new Form I-9 (Rev. 08/01/23) for current employees who already have a properly completed Form I-9 on file, unless reverification applies after October 31, 2023.

Starting on August 1, 2023, employers may download the new Form I-9 (Rev. 08/01/23) from the USCIS website.

If you have any questions about Form I-9 or E-Verify processes or compliance, please reach out to your Jackson Lewis attorney. We will continue to monitor this situation and provide updates as they become available.

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.

As part of the Biden Administration’s initiative to retain high-skilled foreign nationals in the United States, the Department of Homeland Security announced that it is adding eight new fields as qualifying fields of study for STEM (science, technology, engineering, or mathematics) Optional Practical Training (OPT).

STEM OPT is a 24-month extension of Optional Practical Training work authorization available to students who have completed 12 months of OPT and received a degree in an approved STEM field. The students must be involved in a training program and, as the quid pro quo for the 24-month extension, the company must register for and use E-Verify to check new employees’ work authorization.

The new STEM fields are:

  • Landscape Architecture
  • Institutional Research
  • Mechatronics, Robotics, and Automation Engineering
  • Composite Materials Technology/Technician
  • Linguistics and Computer Science
  • Developmental and Adolescent Psychology
  • Geospatial Intelligence
  • Demography and Population Studies

Last year, DHS added 22 fields to the list and gave instructions on how the public could nominate new fields. Since then, DHS received 285 nominations representing 120 unique fields. From that, DHS selected eight, but it noted that nominations could be resubmitted with additional evidence. DHS evaluates nominations based on input from educational institutions, governmental entities, and non-governmental entities. It also reviews submitted information about the required curriculum to determine if the specific field of study is comprised of core STEM disciplines and meets the “related field” criteria of “involving research, innovation, or development of new technologies using engineering, mathematics, computer science, or natural sciences (including physical, biological, and agricultural sciences).” The full list of qualifying STEM fields is on the Student and Exchange Visitor Program (SEVP) website. Under the 2016 final rule establishing the 24-month extension of OPT for F-1 students who majored in designated STEM fields of study, DHS may publish updates to the STEM list in the Federal Register.

The Biden Administration has taken several actions to attract STEM talent to strengthen the U.S. economy and its competitiveness, including the Early Career STEM Research Initiative, which expands the J-1 cultural exchange program to include STEM businesses who wish to host students, interns, professors, research scholars, short-term scholars, specialists, and trainees. Last year, DHS updated its policy manual to clarify how it determines eligibility for nonimmigrants and immigrants seeking classification as a person of extraordinary ability in STEM fields.

A court challenge to the OPT and STEM OPT programs remains ongoing.

Jackson Lewis attorneys are available to assist in establishing STEM training programs and filing STEM OPT applications.

Calling the USCIS Contact Center to reschedule most biometrics appointments is no longer necessary. As part of its effort to streamline services, USCIS launched a new self-service biometrics appointment rescheduling tool. The new tool can be used for both paper-filed and on-line-filed benefit requests.

To use the service, an individual must first create a USCIS online account, if they do not already have one. Further, the rescheduling request must be made before the date of the scheduled appointment.

Acceptable reasons for rescheduling include:

  • Illness, medical appointment, or hospitalization;
  • Previously planned travel;
  • Significant life events such as a wedding, funeral, or graduation;
  • Inability to obtain transportation to the appointment location;
  • Inability to obtain leave from employment or caregiver responsibilities; and
  • Late delivered or undelivered biometric services appointment notice.

There are circumstances where a call to the Contact Center will still be necessary to reschedule:

  • The request is within 12 hours of a scheduled appointment;
  • You have already rescheduled the same appointment twice before;
  • The request is for an already missed appointment; or
  • The USCIS rescheduling tool is not working at the time.

To use the service, go to https://my.uscis.gov/ and follow the prompts to set up an account. Once the account is established, sign in and select the Biometrics Rescheduling Option. You will follow the prompts on the screen and print the new appointment notice at the end. Each person who is rescheduling must bring the new appointment notice along with a valid, unexpired photo identification (for example, a Green Card, a passport, or a driver’s license) to the Application Support Center at the rescheduled time.

Benefit requestors, their attorneys, and accredited representatives may use this service.

Please reach out to your Jackson Lewis attorney if you need to reschedule a biometrics appointment and for further information.

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.

Texas did not have standing to challenge the Biden Administration’s policy priorities regarding removal of noncitizens, the U.S. Supreme Court has ruled. United States v. Texas, No. 22-58 (June 23, 2023).

In February 2021, recognizing that, of the more than 11 million removable noncitizens in the United States, the majority have become contributing members of their communities, Secretary of Homeland Security Alejandro Mayorkas issued guidelines prioritizing the apprehension and removal of noncitizens who posed a threat to national security, public security, and border security based on a case-by-case assessment.

Texas, joined by Louisiana and, later, by other states, challenged that policy, alleging it was not in compliance with the law stating that the Department of Homeland Security “shall” take into custody certain noncitizens. Texas claimed it had an interest in this policy because it had an interest in protecting its citizens from the criminal activity of aliens who were subject to mandatory detention. The U.S. District Court for the Southern District of Texas agreed and held the policy guidance had to be vacated.

The Biden Administration appealed to the U.S. Court of Appeals for the Fifth Circuit and, ultimately, to the U.S. Supreme Court seeking a stay of the vacatur. Neither court would issue a stay, but the Supreme Court agreed to hear the case even prior to a Fifth Circuit decision.

The Supreme Court requested briefing on three questions: 1) standing; 2) whether the guidance violated the Immigration and Nationality Act or the Administrative Procedure Act; and 3) whether the remedy of vacatur is barred. The Court reached only the question of standing in its decision.

In an 8-1 vote, the Court wrote that the executive branch had broad discretion in enforcing the laws and that past administrations have all had to prioritize enforcement due to a lack of resources necessary to arrest and deport all noncitizens who are deportable. Justice Brett Kavanaugh, writing for the majority, held that granting standing in this case could open the door to allowing states to challenge any number of enforcement policies. But, he did stress that this ruling was a narrow one. Justices Neil Gorsuch and Amy Coney Barrett wrote concurring opinions. Only Justice Samuel Alito dissented, writing that Texas did have standing.

Secretary Mayorkas has noted that, due to various formalities, it likely will take a month before the guidelines will be reinstituted. In the meantime, individual requests for prosecutorial discretion should continue to be pursued.

Jackson Lewis attorneys are available to assist with questions regarding the the Court’s opinion and the Department of Homeland Security enforcement guidance.

U.S. Citizenship and Immigration Services (USCIS) may require employers to file amended H-1B visa petitions when relocating employees to new locations and did not fail to follow or otherwise circumvent rulemaking requirements in doing so, the U.S. Circuit Court for the District of Columbia has ruled. ITServe Alliance Inc. v. DHS, No. 22-5074 (June 27, 2023).

The H-1B nonimmigrant visa classification is for “specialty occupation” employees working under facts, terms, and conditions of employment, as certified by the U.S. Department of Labor and approved by USCIS. Just as in other employer-employee relationships, H-1B employers sometimes may need to change some fact, term, or condition of their H-1B employees’ previously approved employment. This may include a change in work location.

In 2015, in an administrative ruling in Matter of Simeio Solutions LLC, PM-602-0120, USCIS confirmed that changes in an H-1B worker’s employment location can be a “material change” requiring employers to file amended petitions. This ruling led to increased filing fees and paperwork for employers “materially changing” their employees’ work locations.

In December 2020, information technology industry group ITServe, which represents member companies that often have needs to change employees’ work locations, filed suit challenging Matter of Simeio Solutions LLC as “procedurally defective rulemaking.” In February 2022, the U.S. District Court for the District of Columbia ruled USCIS had not run afoul of the Administrative Procedure Act’s notice and comment period in issuing its decision.

In ITServe Alliance Inc. v. DHS, the D.C. Circuit Court agreed, concluding that Matter of Simeio Solutions, LLC constitutes “an informal adjudication resting on USCIS’s interpretation of the material change regulation” and “functions like a judicial decision interpreting an agency regulation and then applying it to resolve a case or controversy.” The three-judge panel further stated the applicable regulation on “material change” allows USCIS to “monitor changing facts,” understanding that facts, terms, and conditions of employment, when modified, are subject to further review and adjudication by the agency.

The consequence for employers is that one approved H-1B petition is not necessarily sufficient to cover the full temporal period of approval if an employee’s work location changes within that time frame and amended petitions may be necessary when such material changes occur. While employers likely have been proceeding accordingly since Matter of Simeio Solutions, LLC, the D.C. Circuit’s ruling confirms the procedural soundness of USCIS’s requirements.

If you have questions as to whether an H-1B amended petition is necessary, please reach out to your Jackson Lewis attorney.

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.

Years ago, people employed in manufacturing were seen as bit players in an industrial machine, but no longer. Many manufacturing jobs today require high-level STEM (science, technology, engineering, and math) skills. 

Despite encouraging U.S. students, veterans, and those in underrepresented communities to pursue careers in manufacturing, not enough prospective employees are available. 

Manufacturers have their eyes on foreign national students and others from abroad who have the necessary skills notwithstanding the difficulties of this route. Indeed, it is becoming more difficult because some U.S. immigration law is as outmoded as the idea that employees in manufacturing are easily found in the U.S. labor pool. Any manufacturer looking to employ foreign talent must understand the H-1B visa and its alternatives.

Please see our full publication here.

On June 13, 2023, the Department of Homeland (DHS) announced that it would extend Temporary Protected Status (TPS) for 18 months for current beneficiaries from El Salvador, Honduras, Nepal and Nicaragua.

Soon-to-be-published Federal Register notices will explain the eligibility criteria, timelines, and procedures necessary for current beneficiaries to re-register for TPS. Indications are that individuals in TPS will need to re-register for TPS in order to be eligible for the extensions. No action should be taken by employers or employees until those notices are available. In conjunction with these re-registrations, it appears that Employment Authorization Documents (EADs) will be automatically extended.  

These four countries have been subject to TPS extensions based upon pending litigation.

Secretary of Homeland Security Alejandro N. Mayorkas stated:

Through the extension of Temporary Protected Status, we are able to offer continued safety and protection to current beneficiaries who are nationals of El Salvador, Honduras, Nepal, and Nicaragua who are already present in the United States and cannot return because of the impacts of environmental disasters . . . .

El Salvador

TPS will be extended until March 9, 2025. Only current beneficiaries who have continuously resided in the United States since February 13, 2001, will be able to re-register.

Honduras

TPS will be extended until July 5, 2025. Only current beneficiaries who have continuously resided in the United States since December 30, 1998, will be eligible to re-register.

Nepal

TPS will be extended until June 24, 2025. Only current beneficiaries who have continuously resided in the United States since June 24, 2015, will be eligible to re-register.

Nicaragua

TPS will be extended until July 5, 2025. Only current beneficiaries who have continuously resided in the United States since December 30, 1998, will be eligible to re-register.

You can find further information about TPS work authorization for all covered countries by using our TPS tool.

If you have any questions about TPS work authorization and how to complete Forms I-9 Employment Eligibility Verification or make E-Verify submissions, Jackson Lewis attorneys are available to assist.

Jackson Lewis will provide updates as they become available.