DHS Implements International Entrepreneur Rule With Plans to Remove it in Near Future

 

Introduction

On January 17, 2017, the Department of Homeland Security (DHS) published the final version of its international entrepreneur parole rule in the Federal Register (FR) at 82 FR 5238 [PDF version]. The rule, published during the final week of the Obama Administration, was originally slated to take effect on July 17, 2017. However, on July 11, 2017, the DHS published a new rule, at 82 FR 31887 [PDF version], delaying the effective date of the International Entrepreneur Rule pending its likely repeal in light of directives regarding the use of parole authority in President Donald Trump's Executive Order 13767 [see section]. However, on December 11, 2017, Judge James E. Boasberg of the United States District Court, District of Columbia, issued an order vacating the delay rule and allowing the International Entrepreneur Rule to take effect immediately. Please see our full article on these issues to learn more [see article].

In this article, we will examine the DHS's implementation of the International Entrepreneur Parole Rule. However, please bear in mind that, while the DHS is implementing the rule in accordance with Judge Boasberg's order, it is simultaneously engaged in the process to formally remove the International Entrepreneur Rule in the near future. Accordingly, an individual who is interested in the new program should consult with an experienced immigration attorney for up-to-date guidance on the situation and on nonimmigrant and immigrant avenues for investment immigration [see category].

International Entrepreneur Rule

Our article will be based on the DHS page on the International Entrepreneur Rule [PDF version].

Implementation of the International Entrepreneur Rule — DHS Still Plans Removal of Rule

The DHS announced on December 14, 2017, that it would begin implementing the International Entrepreneur Rule in compliance with Judge Boasberg's order. However, the DHS made clear that it “is planning to propose to remove the [International Entrepreneur Rule] because it is not the appropriate vehicle for attracting and retaining international entrepreneurs and does not adequately protect U.S. investors and U.S. workers.” It also cited to President Trump's Executive Order provisions on parole authority. It stated: “While DHS complies with the court order and implements the [International Entrepreneur Rule] parole program, DHS is also in the final stages of publishing a notice of proposed rulemaking seeking to remove the [International Entrepreneur Rule].”

Program Requirements

Notwithstanding that the International Entrepreneur Rule will likely be short-lived, those who are interested may now submit applications.

In order to qualify for the entrepreneur parole program, an alien must satisfy several requirements.

First, he or she must “[p]ossess a substantial ownership interest in a start-up entity created within the past five years in the United States that has substantial potential for rapid growth and job creation.”

Second, the alien must have an active role in the start-up entity “such that [he or she is] well-positioned to substantially assist with the growth and success of the business.”

Third, the alien entrepreneur must establish that he or she will provide a substantial public benefit to the United States based on his or her role as an entrepreneur of the start-up entity. The rule provides three ways to establish “significant public benefit.” The alien may show that the start-up entity “has received a significant investment of capital from certain qualified U.S. investors with established records of successful investments.” Alternatively, the alien may show that his or her start-up entity “has received significant awards or grants for economic development, research and development, or job creation (or other types of grants or awards typically given to start-up entities) from federal, state, or local government entities that regularly provide such awards or grants to start-up entities.” Finally, the alien may show that the start-up entity partially meets either or both of the investment or grants/awards requirements and also “provide additional reliable and compelling evidence of the start-up entity's substantial potential for rapid growth and job creation.”

Finally, the alien entrepreneur must show that he or she otherwise merits a favorable exercise of discretion for parole. Because the International Entrepreneur Rule establishes a parole program, there is technically no derivative benefit such as there is for many nonimmigrant visa categories. However, a spouse or child of an alien entrepreneur who is granted parole may also be granted parole if he or she (1) is independently eligible for parole based on significant public benefit or urgent humanitarian reasons; and (2) merits a favorable exercise of discretion.

Application Process

An alien entrepreneur may file an application on the Form I-941, Application for Entrepreneur Parole, with fee [Form PDF; Instructions PDF]. The filing fee for the Form I-941 is $1,200. The applicant must also pay the $85 biometric services fee. The DHS notes that the approval of the Form I-941 does not, in and of itself, constitute a grant of parole. An alien entrepreneur with an approved Form I-941 must obtain travel documentation at a U.S. consulate abroad and then appear at a U.S. port of entry for a final parole determination. A national of Canada traveling directly from Canada may present his or her approved Form I-941 at a U.S. port of entry without having to obtain travel documentation.

The alien entrepreneur's spouse and/or child(ren) may seek to accompany him or her by filing the Form I-131, Application for Travel Document, with fee. The alien entrepreneur's child must be unmarried and under the age of 21 in order to be eligible. The filing fee for the Form I-131 is $575 with a biometric services fee of $85. However, the biometric services fee is only required for applicants 14 through 79 years of age. The Form I-131 must include evidence of the spouse's (marriage certificate) or child's (birth certificate) relationship with the alien entrepreneur. The Form I-131 may be filed concurrently with the alien entrepreneur's Form I-941. However, if they are filed separately, the Form I-131 should be filed with “documentation indicating that the entrepreneur has a pending Form I-941 requesting parole, that such request was granted, or that the entrepreneur is a parolee.” This evidence may include the alien entrepreneur's Form I-797, Notice of Action (indicating receipt of the Form I-941); the alien entrepreneur's Form I-512, Authorization for Parole of an Alien into the United States (indicating that the request was granted); or the alien entrepreneur's Form I-94, Arrival-Departure Record (indicating that the entrepreneur was paroled into the United States).

After being paroled into the United States, the alien entrepreneur's spouse may seek employment authorization by filing the Form I-765, Application for Employment Authorization. The employment authorization eligibility category for the spouse of an alien entrepreneur is (C)(34). The applicant must submit evidence of his or her parole status and that his or her spouse is an International Entrepreneur Parolee. The child of an alien entrepreneur is not eligible for employment authorization. The Form I-765 cannot be submitted before the alien spouse is paroled into the United States.

Forms must be filed at the United States Citizenship and Immigration Services (USCIS) Dallas Lockbox facility:

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Conclusion

While the International Entrepreneur Rule has now been implemented, the DHS has made clear that it is moving to remove the rule through the administrative process. Accordingly, the entrepreneur parole program will likely be in effect for months, rather than years. An individual who is interested in the program should consult with an experienced immigration attorney for up-to-date guidance before filing the Form I-941 or any related forms. An attorney will be able to advise the individual about the program and whether other more durable options for engaging in entrepreneurship in the United States through the immigration system may be available based on the facts of the case.

We will update the website with more information on the International Entrepreneur Rule as it becomes available.