International Entrepreneurs – A New Proposed Immigration Option Published by USCIS

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U.S. Citizenship and Immigration Services (“USCIS”) published a final rule on January 17, 2017, that will – effective July 17, 2017, allow international entrepreneurs who will have an active and central role in the operations of a start-up entity to apply for parole so that they may start or grow their business in the United States.  The parole is for 30 months, with a possible 30 month extension.

Parole means temporary permission to be in the United States.  It does not evolve into permanent residence status.  In order to obtain permanent residence status one would have to make a separate application and demonstrate eligibility in the relevant category.  Possibilities might include filing an immigrant visa petition in the Employment-Based category for Aliens of Extraordinary Ability (EB-1) or for a National Interest Waiver (EB-2).

The full text of the final rule on parole for international entrepreneurs can be found here.

Under the final rule, effective July 17, 2017, the Department of Homeland Security (“DHS”) may parole an entrepreneur who can show that their parole into the United States would provide a “significant public benefit to the United States based on his or her role as an entrepreneur of a start-up entity.” To qualify, the entrepreneur must demonstrate that:

• The applicant holds a significant ownership interest in the start-up entity (at least 10 percent and 5 percent at time of application for re-parole);
• The applicant will have an active and central role in the operations and is well-positioned to substantially assist the entity with the growth and success of its business;
• The entity was formed in the United States within the 5 years immediately preceding the filing date of the initial parole request; and
• The startup has:
  • Received a qualified investment of $250,000 or more within the 18 months immediately preceding the filing of an application for initial parole from one or more qualified investors; or
  • Received, within the 18 months immediately preceding filing of an application for initial parole, at least $100,000 in qualified government awards or grants; or
  • Has partially satisfied one or both of the above criteria in addition to other reliable and compelling evidence of the startup entity’s substantial potential for rapid growth and job creation
• Qualified investors are defined as:
  • U.S. citizens or lawful permanent residents or U.S. legal entities majority owned and controlled by U.S. citizens or lawful permanent residents that regularly made substantial investments in start-ups that subsequently exhibited substantial growth in revenue or job creation
    • “Substantial investments” means equity investments in start-up entities totaling no less than $600,000 during the preceding 5 years
    • Subsequent to such investments at least 2 such entities must have each created at least 5 qualified jobs (full-time positions held by one or more full-time U.S. worker employees for at least one year – excluding parent, spouse, brother, sister, son or daughter of the entrepreneur), or generated at least $500,000 in revenue with average annualized revenue growth of at least 20 percent
  • No organizations or persons enjoined from dealing in securities or investment advising and related activities

Highlights of the proposed rule:

• Entrepreneurs may be granted parole for up to thirty months from the date of initial parole, and DHS may re-parole for one additional period of up to 30 months (No additional re-paroles beyond the initial parole and one re-parole – for a total of 5 years – based on the same start-up entity)
• No more than three entrepreneurs may be paroled based on the same start-up entity
• The entrepreneur may only work for the start-up entity in the U.S., and may begin work immediately upon entering the U.S. in parole status, using their passport and I-94 reflecting parole status as evidence of employment authorization
• A spouse and any minor, unmarried children may be paroled for no longer than the period granted to the entrepreneur following approval of Form I-131
• Spouses who wish to work must apply for and obtain a work permit after admission in parole status and prior to commencing work
• Parole application by the entrepreneur must be submitted on Form I-941 with a filing fee of $1,200
• Biometrics appointments, either at an Application Support Center in the U.S. or a USCIS or Consular office outside the U.S., will be required for all family members seeking parole
• USCIS will consider negative factors that may exist to determine whether the totality of the circumstances indicates parole will provide a significant public benefit and the applicant merits grant of parole as a matter of discretion
• Parole is revocable if DHS determines the parole no longer provides a significant public benefit, g. ceased operations in the U.S.
• Following admission, the parolee must maintain a household income that is greater than 400 percent of the federal poverty line (g. $97,200 for a family of four living in the continental United States)
• One re-parole for up to 30 additional months beyond the initial parole is possible if the applicant can show that the entity continues to operate and has substantial potential for rapid growth and job creation; the applicant continues to be well positioned to substantially assist with the growth and success of the entity’s business; and the applicant continues to hold at least a 5 percent ownership interest.  In addition, applicants for re-parole must show that the startup:
  • Received at least $500,000 in qualifying investments, qualified government grants or awards, or a combination of such funding, during the initial parole period; or
  • Created at least 5 qualified jobs with the start-up entity during the initial parole period; or
  • Reached at least $500,000 in annual revenue and averaged 20 percent in annual revenue growth during the initial parole period; or
  • Partially met one of the above three criteria, along with other reliable and compelling evidence of the start-up entity’s substantial potential for rapid growth and job creation