Under a new final regulation published on 17th January 2017, international entrepreneurs who have established a business in the United States, demonstrate significant U.S. funding and show that their business has substantial potential for rapid growth and job creation will be eligible to apply for up to five years of authorization to stay in the United States.
The rule is slated to take effect on July 17, 2017.
The long-awaited program was first announced in November 2014 as part of President Obama’s planned executive actions to encourage innovation and support U.S. high-skill businesses and workers and was published in proposed form for public comment in August 2016. The purpose of the program is to fill a gap in the U.S. immigration system and allow promising foreign entrepreneurs who might not meet the eligibility criteria of existing visa programs to remain in the United States to grow their businesses and make contributions to the U.S. economy.
The program does not provide an immigration status to approved applicants. Rather, qualifying entrepreneurs will receive parole – a discretionary permission to enter and remain in the United States – but will not be eligible for permanent residence unless they qualify under another U.S. immigration program.
Qualifying Entrepreneurs
To be eligible for parole under the new rule, a foreign entrepreneur must meet the following criteria:
The applicant must have established a U.S. start-up business within five years before the application for parole;
The applicant must hold an ownership interest in the startup of at least 10 percent;
The applicant must play an active and central role in the operations of the business, and not merely be an investor; and
The start-up must have received a capital investment of at least $250,000 from qualified U.S. investors or at least $100,000 in grants or awards from qualifying U.S. federal, state or local government entities. Foreign nationals who only partially satisfy the funding criteria would need to provide additional compelling evidence of the start-up’s substantial potential for rapid growth and job creation.
No more than three entrepreneurs may be granted parole per start-up entity.
Duration of Stay in the United States
Approved entrepreneurs are to be paroled into the United States for an initial period of up to 30 months, with authorization to work for the start-up entity only. Qualifying dependents are to receive parole for the same period as the principal, and spouses will be eligible to apply for employment authorization.
An additional 30 months of parole will be available if the entrepreneur demonstrates that:
The business continues to operate;
The entrepreneur retains at least a five percent ownership interest and continues to play a central role in the business; and
The business has:
Created at least five qualifying jobs;
Received at least $500,000 in qualifying investments, government grants or awards, or a combination thereof; or
Generated at least $500,000 of U.S. revenue and averaged 20 percent in annual growth during the initial parole period.
As with the initial grant, applicants for reparole who only partially satisfy the investment, job creation and growth criteria may meet the standard by providing other reliable and compelling evidence of the start-up’s substantial potential for rapid growth and job creation.
As a discretionary grant, parole can be revoked by the U.S. government at any time if the start-up is no longer in operation or otherwise ceases to provide a significant public benefit to the United States.
What the Final Rule Means for International Entrepreneurs
The final version of the international entrepreneur rule includes several positive refinements from the proposed regulation, including changes suggested by Fragomen and its advocacy partners. These include a lower funding threshold, a broader definition of qualifying investments and a reduced job creation requirement. These changes expand the pool of international entrepreneurs who can qualify for the program, but many limitations remain, including the lack of a direct path to permanent residence and the uncertainties of entering and staying in the United States under a grant of parole.
Though USCIS is set to begin accepting entrepreneur parole applications later this year, it is not yet known whether the new administration will implement the program as scheduled, or elect to delay or suspend implementation.
USCIS has determined that, next month, it will only accept employment-based adjustment of status applications from foreign nationals with a priority date that is current for final action under the State Department’s February Visa Bulletin.
Employment-Based Priority Date Cut-offs for February 2017
To be eligible to file an employment-based adjustment application in February, employer-sponsored foreign nationals must have a priority date that is earlier than the date listed below for their preference category and country.